California Gov. Gavin Newsom has signed into law a bill that aims to protect voters and political candidates from deepfakes in time for the 2020 election.
AB 730, written by Assemblyman Marc Berman, D-Palo Alto, prohibits distribution of doctored video or audio of a candidate “with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate” unless the media is clearly marked as fake.
The new law, signed Thursday, boosts existing law about manipulated photos and would allow candidates to seek injunctive relief and damages if they can prove the deepfakes were distributed with malice.
“In the context of elections, the ability to attribute speech or conduct to a candidate that is false – that never happened – makes deepfake technology a powerful and dangerous new tool in the arsenal of those who want to wage misinformation campaigns to confuse voters,” Berman said in a statement.
Earlier this year, doctored videos appearing to show House Speaker Nancy Pelosi slurring her words put a spotlight on the issue — even though they were not as sophisticated as deepfakes because it was easy to tell they were manipulated — especially after President Donald Trump retweeted the Fox News version of the video. The videos were viewed millions of times online, raising once again questions about social media companies’ responsibility for the content on their platform. Under Section 230 of the Communications Decency Act, online platforms are not liable for what their users post. (YouTube removed the videos; Facebook did not.)
The new law includes many exemptions because the author tried to make sure it didn’t infringe on political speech. It only applies if the manipulated media is distributed 60 days before an election. Radio and TV stations may run such audio and video if they are paid to do so. Also, deepfakes that are clearly marked or indicated as such may be broadcast on radio and television and distributed online, including by news organizations. Another key exemption is for satire.
Erwin Chemerinsky, dean of the School of Law at the University of California Berkeley, argued in a letter of support that the bill does not violate the First Amendment right to free speech. He pointed out that the Supreme Court “has said that speech which is defamatory of public officials and public figures has no First Amendment protection if the speaker knows the statements are false or acts with reckless disregard of the truth.”
The ACLU disagrees, saying that the bill was not tailored narrowly enough to allow for the wide berth afforded to political speech under the Constitution, and urged the governor to veto the bill.
“Despite the author’s good intentions, this bill will not solve the problems of deceptive political videos; it will only result in voter confusion, malicious litigation, and repression of free speech,” said Kevin Baker, legislative director for the ACLU of Northern California, in a letter to Newsom.
Baker also said the exemptions for journalists were inadequate, since the law specifies broadcasters and newspapers and leaves out others who also have a right to free speech.
The Electronic Frontier Foundation also urged Newsom to veto the bill.
“Liability in AB 730 depends on the highly subjective issue of whether a ‘reasonable person’ would have a ‘fundamentally different’ impression of a candidate if they had seen or heard an unaltered version of the audio or visual material,” wrote Hayley Tsukayama, legislative analyst for the EFF, in a letter to the governor. That is too vague a standard and could suppress political speech, she said.
The law would apply until Jan. 1, 2023, a nod to the ever-changing nature of technology, according to Berman’s office.
In Texas, a new deepfakes law that went into effect last month. That law makes it a misdemeanor to create and distribute a deepfake video within 30 days of an election with the intent to harm a candidate or influence an election.