Artificial intelligence technologies have been used to enhance deepfake campaigns. Deepfake is defined as synthetic media where a real person’s image is replaced with someone else’s likeness. It can be used to create an artificial video of another person and make it look real. It has been used to create celebrity porn videos, revenge porn, or fake news. It uses deep learning artificial intelligence software to create a fake picture or video. So, in essence, it can threaten valid and truthful information by publishing false or inaccurate information.
The technology that permits the creation of deepfake is “deep neural networks” which is one kind of artificial intelligence algorithm that finds large data set patterns. The neural-network structure that is generally used is the “autoencoder” which comprises of an encoder and decoder. The encoder compresses the image to a smaller size and the decoder decompresses the image back to the original size. A similar technology is the VFX which has been used by movie studios for visual effects. However, at the present time, a similar and less expensive technology is available.
There can be problems with deepfake technologies. For example, it’s been used to create fake images or videos of well-known individuals. This, in and of itself, can create legal issues such as defamation, false light, and civil harassment. Defamation is a false factual statement that is not privileged and tends to harm someone’s reputation. Defamation can occur against individuals and corporations and can have a lasting negative effect. False light is similar to defamation but it usually concerns invasion of privacy. So, for example, it can happen when a person is falsely portrayed as something he or she is not due to inaccurate impressions. The Restatement Second of Torts, Section 652, defines it as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
This technology creates a legal conundrum because it lets people create a non-existing falsehood – e.g., a politician making a remark – or otherwise fake videos or pictures. Deepfake technology can be a threat to national security because it can be abused by bad actors. The creation of misinformation (i.e., distortion of truth) is a large problem in our society. So, at this time, technology companies and government agencies are trying to figure out how to detect and prevent deepfakes that are designed to cause widespread fake news. In fact, the Department of Defense’s research segment – called DARPA – has initiated a program to detect and prevent deepfakes and other types of automatic disinformation campaigns.
Intellectual property rights can come into play. For example, copyright violations may take place when a duly-registered picture or video is unlawfully taken without the owner’s permission. However, the adverse party, who created the fake picture or video, may claim free speech or freedom of expression as a legal defense. The state and federal Constitutions protect free speech and freedom of expression but there are exceptions. Hence, many social media platforms – such as Facebook, Instagram, Twitter, Reddit, Tiktok – have banned this type of activity from their platforms. California, by and through Assembly Bill 730 (“AB 730”) prohibits using deepfakes in order to protect voters from receiving misleading information during elections. In fact, large social media websites – such as Facebook – have admitted that they are not fully equipped to detect deepfakes in their systems. The usage of artificial intelligence technologies for making fake videos or pictures during the election has caused many problems. So, states like California, have come up with new legislation.
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