The Double-side of Deepfakes: Obstacles and Assets in the Fight Against Child Pornography

• Publication year: 2022

The Double-side of Deepfakes: Obstacles and Assets in the Fight Against Child Pornography

Abigail Olson
University of Georgia School of Law

The Double-side of Deepfakes: Obstacles and Assets in the Fight Against Child Pornography

Cover Page Footnote
J.D. Candidate, 2022, University of Georgia School of Law; B.A., 2018, Emory University.

THE DOUBLE-SIDE OF DEEPFAKES: OBSTACLES AND ASSETS IN THE FIGHT AGAINST CHILD PORNOGRAPHY

Abigail Olson^*

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Deepfake technology recently took the internet by storm. Although they can be used for both innocuous and nefarious purposes, deepfakes overwhelmingly depict people who appear to be creating nonconsensual pornography. The rise of deepfake technology must be accounted for in the existing federal legal framework, specifically in cases implicating images of children. While deepfakes' malicious uses ought to be criminalized, exceptions should be made to use deepfake technology as a tool to enforce and deter purveyors of child pornography. This Note explores what the emerging legal framework addressing deepfakes should look like and considers the importance of using the "flipside" of deepfake technology—meaning its potentially safe, beneficial uses—to stop child pornography.

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Table of Contents

I. Introduction...............................................................867

II. Background................................................................870

A. CHILD PORNOGRAPHY LAW IN THE UNITED STATES .... 870
B. THE EMERGENCE OF DEEPFAKE TECHNOLOGY...........874

III. Analysis.....................................................................879

A. SUGGESTED LEGAL FRAMEWORK TO ADDRESS DEEPFAKES IN THE CONTEXT OF CHILD PORNOGRAPHY ..................................................................................880
B. EXCEPTIONS TO THE SUGGESTED LEGAL FRAMEWORK ..................................................................................882

1. Allow the Use of Synthetic Pornography Materials for Law Enforcement to Use in Online Stings .................................................... 882
2. Allow the Use of Synthetic Child Pornography as a Rehabilitative Tool for Predators.............885

IV. Barriers to Implementation...................................888

V. Conclusion.................................................................890

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I. Introduction

Your friend sends you a video. At first glance, it looks like any other scene from Game of Thrones. But a few seconds into the scene, something strange happens: the characters' faces change. The video no longer shows a conversation between Sam Tarly and Jon Snow. Instead, you're watching your friend talk to different Game of Thrones versions of himself—his face but the actors' bodies. The strangest thing about the scene: it looks realistic.¹

Anyone with a smartphone can create videos like the one just described, which, like this example alone, can be a creative source of entertainment.² These altered videos are called "deepfakes."³ Simply put, a deepfake is a "fake video or audio recording that look[s] and sound[s] just like the real thing."⁴ Deepfakes include any type of falsified video content that appears realistic, and just about anyone can make them.⁵ Deepfakes use technology driven by artificial intelligence (AI) to create the fake image, which can

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appear either extremely doctored or extremely realistic.⁶ Deepfake videos are relatively new—the technology needed to create them only became widely available to the public in 2017.⁷ Since then, individuals have used deepfakes for an array of purposes: funny videos shared between friends,⁸ comedy shows,⁹ political videos,¹⁰ and even immersive videos of art and culture.¹¹ While the these examples demonstrate the versatility of the technology, an overwhelming majority of deepfakes depict nonconsensual pornographic videos.¹² Many of the first deepfakes of this kind

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featured female celebrities.¹³ Now, about 70% of deepfake targets are private individuals.¹⁴

On the one hand, deepfakes can be a creative and innocuous source of entertainment. On the other hand, deepfakes pose alarming risks in the context of nonconsensual pornography and different obstacles in the context of online child pornography.¹⁵ The harms of deepfakes are apparent in their use as tools to create nonconsensual images depicting abuse. But just as deepfakes can be used to perpetuate abuse, they can also potentially be used to combat that same type of harm. This Note suggests that this flipside of deepfake technology could also serve as a powerful tool in the fight against child pornography.

The relative novelty and prevalence of deepfake technology has caught legal systems on their back foot: technology has far outstripped existing laws on content regulation.¹⁶ The rise of deepfake technology is concerning, and legal frameworks must evolve to account for it. This Note argues that the developing legal frameworks must take special account of pornographic deepfakes of children by enacting new laws and amending current laws criminalizing child pornography and sexual abuse that are applicable to deepfakes. In addition to the development of the law surrounding deepfakes, this Note argues that carveouts should exist for the use of this technology as a tool for law enforcement to catch online predators and to use as a potential rehabilitative tool to divert predators away from continued victimization of children.

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Part II discusses current child pornography law and the emergence of deepfakes in the context of child sexual abuse. Part III suggests how incorporation of deepfake criminalization could proceed at the federal level and then argues for two exceptions to the criminalization of deepfakes in this context: as a crime-fighting tool to identify and stop purveyors of child pornography and as a deterrent or rehabilitative tool to prevent offenders from reoffending. Part IV considers and responds to counterarguments and potential criticisms of exceptions to the criminalization of synthetic child pornography.

II. Background

A. CHILD PORNOGRAPHY LAW IN THE UNITED STATES

Child pornography is an image or video of a child being sexually exploited.¹⁷ Unlike pornography that features consenting legal adults, children depicted in pornography are victims of sexual abuse and exploitation.¹⁸ In child pornography, "[t]he act creating the pornography [is] by force—a rape, for example—and there [is] unequivocally no consent, legally or commonsensically speaking."¹⁹ The sexual abuse and exploitation of children in the United States is not taken lightly, as evidenced by the massive social condemnation and disdain held for perpetrators of this abuse.²⁰

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Furthermore, the abuse and exploitation can cause massive long-term repercussions for victims: "The permanent record of a child's sexual abuse can alter his or her life forever. Many victims of child pornography suffer from feelings of helplessness, fear, humiliation, and lack of control given that their images are available for others to view in perpetuity."²¹

Laws first passed in the 1970s provide the foundation for today's legal response to child pornography.²² The United States Code dedicates an entire chapter to child sexual exploitation and abuse,²³ which defines child pornography as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct" involving a minor.²⁴ A "visual depiction" can be any kind of image and can be stored in a number of ways.²⁵ The Child Pornography Prevention Act of 1996 criminalizes the production, trafficking in, and possession of child pornography.²⁶ While criminalization of child pornography continues to grow,²⁷ pushback related to online free speech concerns also persists.²⁸ The U.S. Supreme Court,

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however, has found that the First Amendment does not protect child pornography.²⁹

Child pornography offenses typically fall under federal jurisdiction when they involve interstate commerce.³⁰ Interstate commerce includes any "commerce between one State, Territory, Possession, or the District of Columbia."³¹ Any person who receives, distributes, reproduces, or advertises material constituting or containing child pornography in a manner that uses or affects interstate commerce violates federal law.³² Interstate commerce is an expansive umbrella—so expansive that the Internet is considered "an instrumentality of interstate commerce" in U.S. caselaw.³³ For example, federal jurisdiction attaches if the materials used to download or store child pornography traveled through interstate commerce, if a hard copy image of child pornography traveled through interstate or foreign commerce, or if the perpetrator used the Internet to commit a child pornography offense.³⁴

Child pornography offenders can also be prosecuted under state law.³⁵ For example, in 2007 Georgia enacted its own law targeting purveyors of child pornography, called the Computer or Electronic Pornography and Child Exploitation Prevention Act.³⁶ The language of the statute aligns closely with existing federal law. Both Georgia and federal law criminalize knowingly coercing a minor to

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engage in sexually explicit conduct, possessing sexually explicit depictions of minors, and distributing explicit material depicting minors.³⁷ The penalties for a federal child pornography conviction are harsher though: the minimum time of imprisonment in Georgia is one year,³⁸ but the federal minimum is five years.³⁹ Although state laws may mirror federal legislation, states have a distinct interest in creating state law causes of action to prosecute offenders when federal jurisdiction does not attach to activity related to child pornography.⁴⁰

Despite the societal disapproval and legal ramifications for those who engage in activity relating to child...