Still Waters Run Deep(fakes): The Rising Concerns of "Deepfake" Technology and Its Influence on Democracy and the First Amendment.

• Author: Wilkerson, Lindsey

1. INTRODUCTION

   "A video circulated that suggested that I was a pedophile. What do you say to that? You go on Twitter and argue you're not a pedophile? I mean, there's no excuse for that, no defense." (1) During the Obama Administration, Michael McFaul served as the U.S. ambassador to Moscow. During his term, he claimed he was the subject of Russian propaganda "[that] accused [him] of plotting to overthrow leader Vladimir Putin as well as pedophilia." (2) In February 2018, McFaul said an altered video was posted on YouTube falsely showing him walking the streets of Moscow with a convicted pedophile. (3) McFaul's claims, if true, would be the first case of a government official having their reputation attacked by "digitally constructed videos that can make it appear that a person is saying or doing something they never did," also known as "deepfakes." (4)

   This Note explores how deepfake technology can disrupt democracy and influence elections through the protections given to political speech under the First Amendment. Part II describes deepfakes in greater detail and identifies the wide uses for deepfake technology. Part III reflects on how the federal government and states are attempting to regulate deepfakes, mainly to protect individuals from pornographic exploitation and election tampering. Finally, Part IV discusses in detail how the First Amendment creates constitutional barriers in regulating deepfakes.

2. LEGAL BACKGROUND

   Deepfakes are a new and evolving form of technology that allow people to make manipulated videos that can have potentially devastating impacts if used in the wrong hands. While the technology behind deepfakes is complex, the ability to make deepfakes is only becoming more accessible as time passes. There are plenty of uses for deepfakes; they could jeopardize individual privacy, fair elections, and perhaps democracy overall. But there are some benefits from the use of deepfake technology, including the promotion of self-expression--a hallmark of the First Amendment. Because of this, deepfakes can be viewed through the lens of the First Amendment, particularly parodies and the protection of lies.

   1. What are "Deepfakes"?

      Deepfakes--sometimes stylized as "deep fakes" or "deep-fakes"--are videos that are digitally manipulated to make it look like a person "is realistically saying or doing something they didn't." (5) The new technology has been spreading virally on the internet for various reasons, including pornography and parody. (6) Some political and legal experts are concerned, however, about deepfake technology being used in the near future to tamper with elections across the globe. (7)

      Deepfake technology has its roots in pornography; it gained popularity in 2017 when lewd videos surfaced showing celebrity faces on pornographic actors and actresses. (8) The number of deepfakes online doubled between 2018 and 2019. (9) With the increasing prominence of deepfakes, "some of the most influential people in the world, and their audiences, have become targets of deepfakers." (10) The first viral deepfake was a pornographic video that featured Wonder Woman lead actress Gal Gadot's face digitally transplanted on top of the face of an actual pornographic actress. (11) The video was first posted on the social media website Reddit by a user named "deepfakes," thus coining the title "deepfake" for these types of videos. (12) Deepfakes can be freakishly realistic since they are "trained on hours of footage, [and have] been specifically generated for its context, with seamless mouth and head movements and appropriate coloration." (13) As technology has progressed, deepfakes have become easier to create since anyone with "a computer, internet access, and interest in influencing an election" can make one. (14) Some apps have even been developed that allow smartphone users to create deepfakes at the touch of their fingertips. (15)

   2. What are the Main Uses and Threats of Deepfakes?

      While deepfakes originated in the pornography industry, there are growing concerns about how they could interfere with politics and elections and threaten individual privacy. Maybe it is not surprising that with the growth and general accessibility of any video-editing software, the "Average Joe" is able to manipulate videos in order to create a false perception of another person. (16) Perhaps what is more disturbing, however, is the reaction and confusion that these altered videos can create. (17) This Part discusses the threats to democracy, elections, and individual privacy that deepfakes may cause, while also noting how they can be protected from regulation by arguments for creative freedom and self-expression.

      1. Threats to Democracy and Elections

         Deepfakes could potentially change the political sphere, spin elections, and increase the dissemination of "fake news." Deepfakes have been described by some as "a powerful new tool for those who might want to (use) misinformation to influence an election." (18) One possible example of this was provided by privacy law scholar Danielle Citron at a TED Talk about deepfakes. (19) She described a hypothetical where, the night before an election, a deepfake spreads online showing one of the major party candidates had fallen ill. (20) Citron claimed that the deepfake "could tip the election and shake our sense that elections are legitimate." (21) When placed in the wrong hands, "deepfakes have the potential to corrode the trust that we have in democratic institutions." (22)

         Citron is not the only scholar worried about this problem; in fact, news outlets like CNBC and The Guardian have reported the same concerns. (23) They compare the spread of deepfakes to the threat of fake news in the 2016 election. (24) In response to this, social media websites are making policy changes to prevent the spread of deepfakes, especially after the criticisms about the increase of fake news. (25) For example, leading up to the 2020 election and census, YouTube announced that it would not "allow election-related 'deepfake' videos and anything that aims to mislead viewers about voting procedures and how to participate in the 2020 census." (26)

         Other social media websites have also established limitations to publishing deepfakes, but their limitations seem to be focused more on limiting the spread of misinformation and "fake news," rather than election tampering. Facebook first put out a statement that it had "strengthen[ed]" its policies "toward misleading manipulated videos that have been identified as deepfakes" in response to growing concerns about the dominance of its presence online. (27) Some news outlets interpreted this statement as Facebook's commitment to completely ban deepfakes from its website. (28) Similarly, Reddit has terminated some forums that were previously started by users to share deepfakes in an effort to stop the spread of deepfakes on its website. (29) On a broader scale, Twitter and Pornhub have completely banned the publication of deepfakes on their websites. (30)

         While these policies are sometimes labeled as a ban, it is possible that some "loopholes" may exist around them. (31) For example, Facebook's deepfake policy has exceptions for "deepfakes meant as satire as well as misleading videos made with less sophisticated tools." (32) Under the First Amendment, this tracks with case law about parody speech. (33) However, in the fight against "fake news," this policy may be troubling to individuals concerned about the spread of false information. (34)

         At the heart of the election tampering and "fake news" concerns rest the overall worries about generalized harm to society, including distortion of democratic discourse, eroding trust in institutions and journalism, increasing social divisions, and threats to national security. (35) Before the 2020 presidential election, there were concerns that deepfakes would be "prevalent and problematic." (36) While deepfakes were certainly circulated during the 2020 election season, (37) later reports dated closer to the election suggested that the concern over deepfake election tampering was overhyped. (38) Outside of elections, politicians on both sides of the aisle have worried about how deepfakes could threaten national security, suggesting deepfakes are a "conceivable political weapon." (39) Diplomats and ambassadors have claimed that they have been the target of deepfakes. (40) Some scholars have warned about the "Liar's Dividend," a term coined for the potential phenomenon that public figures may start claiming their missteps were actually fake news, publicized through a deepfake, rather than a truthful statement. (41)

      2. Threats to Individual Privacy

         Some legal experts are also concerned with the use of deepfakes to harm individuals, either through exploitation or sabotage. (42) Examples of exploitation purposes could include, but are not limited to, financial blackmail, revenge porn, and possibly even "fraudulent kidnapping claims." (43) Deepfake revenge porn seems to be considered the most prominent concern in this category. (44) Revenge porn--the dissemination of pornographic videos or photos without the subject's consent or knowledge--could be transformed into a new beast by using deepfake technology. (45) Now, a person could be the subject of a porn video without having even performed the sex act being showcased in the video. (46)

      3. The Defense of Deepfakes: Self-Expression

         But while critics have been quick to bring up various problems with deepfakes, it is important to acknowledge that there could be some benefits to the new technology--mainly its ability to promote self-expression. (47) For example, there is some evidence that deepfake technology could be used to alter audio files and "restore the ability of persons suffering from certain forms of paralysis, such as ALS, to speak with their own voice." (48) Additionally, comedic parody deepfakes could be considered self-expression. (49) One YouTube channel dedicated...