There’s Not Much We Can Legally Do About Deepfake Porn — Yet (Refinery29)
Extract:
There Are Laws Against Deepfake Porn, But Not Everywhere
While Ford and her colleagues, who have represented clients in revenge porn cases, haven’t yet handled a deepfake pornography case, it’s an area — and growing area of concern — she says they’re keeping their eyes on. As it stands, there are laws in the United States specifically targeting deepfake pornography. In 2019, California Governor Gavin Newsom signed two bills targeting deepfakes, one of which specifically allows residents to sue anyone who uses deepfake tech to put their image in pornographic material. Virginia also has laws specifically targeting deepfake pornography.
But despite some states taking steps forward, there is no federal law tackling deepfake porn, which means the ability to bring criminal or civil charges against an individual differs between states and certain illegal conduct in one state may not be illegal in another.
And that just makes things incredibly complicated, especially given the breadth and reach of the internet. “While laws are delineated around state lines, the internet isn’t,” says Honza Cervenka, a senior associate at McAllister Olivarius, who specializes in discrimination, harassment, and nonconsensual pornography. “If I’m in Virginia, I have access to pretty much the same content as if I’m in California or in North Dakota, never mind the Philippines, Japan, or Ireland.” The real issue, Cervenka says, is that the person creating the nonconsensual images might be out of state — or even outside the country — from those they’re targeting. “That suddenly becomes an almost impossible situation for a victim to get justice because a police force in a small town in California is going to have a hard, if not impossible, time trying to bring somebody who’s in Ireland to justice over a crime such as this.”
Both Cervenka and Ford agree revenge porn and deepfake porn are in a similar vein as nonconsensual, image-based abuse, but the circumstances of deepfakes make it so that cases often fall in a gray area in many states where revenge porn is illegal. For example, to be legally considered image-based sexual abuse, an image needs to depict the actual breast or genitals of the person, which often isn’t the case when it comes to deepfakes, Cervenka and Ford note. Regardless of the nature of the act and intention behind the deepfake, the law doesn’t recognize that the person’s body is being shown. “If you take my face and superimpose it on somebody else’s body, the totality of the image appears as if the body were mine, but it’s not,” Cervenka says, “It sort of falls through the cracks of many of the laws that were written with the original revenge pornography, rather than this more sophisticated deepfake imagery, where a lot of the assumptions behind the legislation are unhelpful to victims.”
Which isn’t to say that all hope is lost. For states that don’t have specific laws around deepfake pornography, there are other avenues people can pursue. Ford says those affected may be able to bring civil claims like misappropriation or copyright infringement (if a photo that was taken was copyrighted) forward. “You kind of have to get creative with those claims as it relates to deepfake pornography, but it’s not impossible,” she says. “It’s just that not a lot of the state laws have caught up and made it very clear cut what the cause of action is.” Despite this, both Ford and Cervenka are optimistic our laws *can* eventually catch up to the ever-evolving internet. It may just take time.