By Lyndall Goudemond | Staff Editor

March 11, 2024

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Artificial intelligence (AI) is in its infancy—not in our Constitution, a historical analog, or rooted in tradition. AI is a relatively new field that is constantly evolving, making it difficult to define. Essentially, AI is a tool that uses algorithmic data to calculate behavior and outcomes.[1] There are many forms of AI, including deepfakes, which are synthetic media applications that use technology to swap biometric features such as faces and voices.[2] As a result, it is crucial to understand the potential risks associated with AI, as it continues to play an increasingly important role in our lives.

Deepfakes are frequently employed to deceive the public. The tampered media can be utilized for a range of purposes, including the creation of simulated recordings of individuals and the dissemination of false recordings of speeches.[3] However, a significant concern about deepfakes pertains to explicit images generated by an algorithm.[4]

12-time Grammy Award-winning musician Taylor Swift is the latest victim of deepfaked media, with explicit images and videos of her circling the internet.[5] Gaining national attention, the White House released a statement in January highlighting the alarming nature of explicit ai-generated media.[6]

Examining deepfakes, especially explicit images, is a social and legal concern. Deepfakes are a privacy issue, and the explicit photos of Taylor Swift could be likened to revenge porn, which in most states correlates to criminal sexual abuse.[7] Recent research has shown that 96 percent of deepfaked videos include nonconsensual pornography.[8] Taylor Swift is not the only individual whom explicit deepfakes have targeted. Her exposure is the most recent of the attacks. Alexandria Ocasio-Cortez and Nancy Pelosi have been targeted politically and sexually in deepfaked media.[9]

The Biden-Harris Administration has made regulating AI a priority in recent months, with President Biden working on protecting citizens from the potential harms presented by the widespread use of AI.[10]

On October 2, 2022, the White House released a Blueprint for an AI Bill of Rights.[11] This document provides a set of five principles to navigate the design and deployment of AI.[12] This executive order aims to protect the American public’s existing rights in the AI age. Although the Biden-Harris Administration has focused on research on AI, the moves made by the White House are not legally binding.

Congress has plans outside of blueprints, with a new bipartisan bill being introduced by Senators Dick Durbin, Lindsey Graham, and Josh Hawley.[13] The Disrupt Explicit Forged Images and Nonconsensual Edits Act would allow citizens to sue the creators and distributors of sexually explicit deepfake images.[14]

The bipartisan bill is not the first Act to be introduced, with the DEEPFAKES Accountability Act being introduced in 2023 by Congresswoman Yvette Clarke.[15] The Act would also provide “legal recourse” for victims of nonconsensual distribution of intimate imagery.[16]

While the United States works to enact regulations for deepfake media, other countries have enacted their own protections. Canada recently passed the Intimate Images Protection Act on January 29, 2024.[17] With the rapid growth of AI in every aspect of everyday life, the harm of deepfakes has become a global issue.

The DEEPFAKES Accountability Act and the Disrupt Explicit Forged Images and Nonconsensual Edits Act will provide civil protections for citizens, allowing victims to bring claims against those who create and distribute deepfakes. However, both Acts leave expectations for parody, common for bills that may impact First Amendment rights. Creating art is mostly protected by the First Amendment. Pornography is protected because it is labeled as a parody.[18] There is nothing theatrical about using nonconsensual intimate images of unwilling parties, whether that is Taylor Swift or an average citizen.

As AI is a novel product, the benefits and disadvantages are still being examined. There are no benefits, only disparate impacts regarding the impacts of falsified media. As AI gains widespread use, the need for regulations in the US becomes more pressing.

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[1] Yongjun Xu et al., Artificial Intelligence: A Powerful Paradigm for Scientific Research, Innovation, Nov. 2021, at 1, 1.

[2] Meredith Somers, Deepfakes, Explained, MIT (Jul. 21, 2020), https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained.

[3] Id.

[4] Id.

[5] Lauren Berg, White House Calls Explicit AI Photos of Taylor Swift ‘Alarming’, Law360 (Jan. 26, 2024), https://www.law360.com/articles/1790815; Geoff Mulvihill, What to Know About How Lawmakers Are Addressing Deepfakes Like the Ones That Victimized Taylor Swift, AP (Jan. 31, 2024), https://apnews.com/article/deepfake-images-taylor-swift-state-legislation-bffbc274dd178ab054426ee7d691df7e.

[6] Berg, supra note 5.

[7] Id.

[8] Id.

[9] Reuters Fact Check, Video Features Deepfakes of Nancy Pelosi, Alexandria Ocasio-Cortez and Joe Biden, Reuters (Apr. 28, 2023), https://www.reuters.com/article/idUSL1N36V2E0/.

[10] See Statements and Releases, White House, FACT SHEET: Biden-⁠Harris Administration Secures Voluntary Commitments from Leading Artificial Intelligence Companies to Manage the Risks Posed by AI (Jul. 21, 2023).

[11] Blueprint for an AI Bill of Rights, The White House (Oct. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf.

[12] Id.

[13] Kat Tenbarge, Deepfake Bill Would Open Door for Victims to Sue Creators, NBC News (Jan. 30, 2024), https://www.nbcnews.com/tech/tech-news/deepfake-bill-open-door-victims-sue-creators-rcna136434.

[14] Id.

[15] Press Release, Congresswoman Yvette D. Clarke, Clarke Leads Legislation to Regulate Deepfakes, (Sept. 21, 2023), https://clarke.house.gov/clarke-leads-legislation-to-regulate-deepfakes/.

[16] H.R .5586, 118th Cong. (2023).

[17] Intimate Images Protection Act, RSNL 2018, c I-22 (Can.).

[18] Kristen Dold, Geoffrey R. Stone on Faked Videos and the First Amendment, Univ. Chi. L. Sch. (Apr. 17, 2018), https://www.law.uchicago.edu/news/geoffrey-r-stone-faked-videos-and-first-amendment.