PHOENIX — Did you happen to see the video last month that allegedly showed Joe Biden announcing he was going to reinstate the draft?
It wasn’t him but a “deep fake.”
Now Arizona will have a law giving candidates a chance to get a judge to say what is true and what is not and use that declaration as part of their campaign.
Legislation signed Tuesday by Gov. Katie Hobbs will allow candidates who claim to be the victim of a deep fake to ask a court for a judgment saying the person in the image, video or audio is not them.
And state lawmakers — who could wind up as victims — gave the measure enough votes to allow it to take effect by the end of the month, just ahead of the flood of campaign media and commercials.
The sponsor, Scottsdale Republican Rep. Alexander Kolodin, was careful to limit what a court could do to no more than a declaration of falsity.
The new law will not permit a judge to order that the offending piece be removed from the internet or wherever it is posted. Nor will it allow the candidate to seek financial damages.
What it comes down to is protecting the public interest and ensuring that people are not acting on, or reacting to, something that is not real, Kolodin said.
“Deep fake technology has progressed so far that a well-made deep fake is really indistinguishable from the person themself,’’ he said.
Consider, he said, the video purporting to show Biden announcing a draft related to the war in Ukraine.
On one hand, Kolodin said the video was of such poor quality that most people realized it was a fake. But not all.
“But if that had been of a better quality such that a large majority of people actually thought it was Biden, people would be grabbing their rifles,’’ he said. “That would incite civil violence.”
“That’s the kind of thing that could be really destabilizing to society,’’ Kolodin said. “So there needs to be a mechanism to go into court and get a court to say, ‘Nah, that doesn’t actually seem like it’s actually Joe Biden’.’’
His House Bill 2394 lays out how to address the problem.
To get a declaration that something is a “deep fake,’’ a candidate would first have to prove to a judge that the “digital impersonation’’ was published without their consent. Then it would require a showing that the intended audience was not informed the impersonation did not depict an actual event or statement or, alternately, that it was “not otherwise obvious’’ a fake was involved.
A judge would be required to rule within two court days whether the image was real.
Providing the proof to get such an order, however, remains a separate question, and could depend on the situation.
Consider, Kolodin said, if there were a video claiming a candidate had sex with a hooker in Thailand.
In that case, he said, a judge could consider the declarations of campaign workers who would avow that the candidate was not in Thailand. That might be sufficient for the candidate to get the judicial declaration the video is clearly a fake, he said.
“Of course, there’s other contexts where you would need a technical expert,’’ Kolodin said.
He conceded it might be difficult for a candidate to come up with the kind of testimony to prove that what’s in the video isn’t real.
“Maybe a presidential campaign has full-time technical staff that they could immediately produce,’’ Kolodin said.
Others may be out of luck. “We’ve made it not so easy to do,’’ he said. “Our primary concern is to protect the First Amendment.’’
Kolodin said he did not want to give judges, handling such complaints on a two-day expedited basis, the ability to order something removed from publication.
Also, having an Arizona judge simply issue a finding that something is a fake gets around other legal issues, like trying to force someone who isn’t in Arizona to remove a post.
He said this approach also sidesteps the thorny question of a judge having to determine what could be deeper issues of whether a fake qualifies as satire, which is constitutionally protected.
The National Conference of State Legislatures reports 14 other states have also enacted restrictions, most of them built around the idea of disclosure.
A new Oregon law, for example, requires campaign communications that contain synthetic media to include a statement saying it has been manipulated. Utah has a similar law.
Other states, however, have taken a firmer stance.
Texas, for example, prohibits the use of deep fake videos to harm a candidate or influence an election within 30 days of the vote. Violators can end up with a year in prison and a $4,000 fine.
A year-old law in Minnesota bars such media within 90 days of the election unless it has the consent of the person depicted. A second violation within five years is punishable by up to five years in prison and a $10,000 fine.
And the Federal Election Commission voted last year to review a petition asking that it regulate ads that manipulate the content to make it look like political foes saying or doing something that did not happen.
Kolodin acknowledged he took a deliberately lighter touch with his plan.
“My view with legislation is, if there’s a problem you first find the mildest possible way to address it,’’ he said.
Once the law becomes enforceable in Arizona, he said, legislators can judge whether it adequately addresses the problem.
“If it’s sufficient, then great, we don’t need to do more and we don’t want to do more,’’ Kolodin said. “If it’s not sufficient, then the Legislature can reassess. When you’re dealing with something that’s as fraught with First Amendment implications, as something like, this, you really want to start very, very small.”
Kolodin said the measure could serve as “model legislation’’ for other states to follow.
Not everything in HB 2394 is aimed at deep fakes involving politicians.
There also are provisions allowing anyone else to seek damages for deep fakes that purport to show them undressed, performing a criminal act, or in situations where the individual is being portrayed in a way that would cause financial hardship or where the person’s reputation would be “irreparably harmed.’’
In those types of cases, a victim could seek a court order removing the offending material as well as financial damages.
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