By Howard Fischer
Capitol Media Services
PHOENIX -- The way Alexander Kolodin sees it, a well-crafted "deep fake'' video or audio has the capacity to swing an election.
So he is proposing a path for candidates to get a quick ruling from a court to allow them to try to convince voters -- with a court order in hand -- that what they are seeing really isn't them.
But the proposal by the Scottsdale lawmaker would not allow a judge to actually order a deep fake of a candidate to actually be removed from the internet or wherever it is posted. Still, Kolodin said, it provides candidates some avenue of relief.
"This solves something that is going to be a real problem in very short order,'' he said. And it's all due to changes in technology and the use of artificial intelligence which has made audio -- and in some cases, video -- virtually indistinguishable from reality.
"It's something that could really cause a lot of disruption if it happens prior to an election,'' he said. "So there needs to be something to try to address it.''
That something is laid out in his HB 2394.
To get that declaration that something is a "deep fake,'' a candidate would first have to prove to a judge that the the "digital impersonation'' was published without his or her consent. And then it would require a showing that the intended audience was not informed that did not depict an actual event or statement or that was was "not otherwise obvious'' that it was a fake.
As Kolodin crafted it, 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 it could depend on the situation.
Consider, he said, if there were a video of a candidate purportedly on a beach in Thailand having sex with a hooker.
In that case, Kolodin said, a judge could consider the declarations of campaign workers who would avow that the candidate was not in Thailand. That, he said, might be sufficient for the candidate to get that judicial declaration that the video is clearly a fake.
"Of course, there's other contexts where you would need a technical expert,'' Kolodin said. Still, 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.
And everyone else seeking a court declaration that something is a fake? Kolodin said they 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.''
All that goes back to the limited relief that HB 2394 could provide to candidates: the court declaration that something is a deep fake. Kolodin said he does not want to give judges, handling such complaints on a two-day expedited basis, the ability to order something actually removed from publication.
Anyway, he said, 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 even in Arizona to remove it the post.
"You're getting a judicial declaration,'' Kolodin said. "The court doesn't have to enforce any order outside the state of Arizona.''
That, however, is only the case if the person is a public figure or candidate.
Kolodin's legislation would allow others to go to court if someone published a deep fake of them naked or engaged in a sex act. And in that case, he said, these individuals -- if they prove their case after a full-blown hearing -- could get not only an injunction ordering that the video be taken down but also be able to sue for damages.
But the prime focus of his legislation, he said, is the political side, where problems already are popping up.
The presidential campaign of Florida Gov. Ron DeSantis released a video last year criticizing Donald Trump.
One of the images purported to show Trump embracing Dr. Anthony Fauci who had been his head of the National Institute of Allergy and Infectious Diseases during the COVID outbreak. Some conservatives have criticized Fauci for what they have said was an over-zealous approach to dealing with the disease.
Twitter eventually added a note to the post declaring that three images of the embrace were generated by artificial intelligence.
Some states are taking a more proactive stance than what Kolodin is proposing.
Minnesota last year enacted a measure which prohibit the use of manipulated video, images and audio within 90 days of an election if it is done with the intent of hurting a candidate or influencing the outcome of the vote. Public Citizen reports that four other states have adopted their own measures.
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 that simply lets candidates get a judicial determination of whether something is real or fake.
"My view with legislation is, if there's a problem you first find the mildest possible way to address it,'' he said. He said what would need to be seen -- if HB 2394 becomes law -- is 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.''
He also said that this approach sidesteps a judge having to determine what could be deeper issues of whether a fake actually qualifies as satire, which is constitutionally protected.
"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.
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