By Howard Fischer
Capitol Media Services
PHOENIX -- Did you happen to see the video last month of Joe Biden announcing he was going to reinstate the draft?
It wasn't him but a "deep fake.''
Now Arizona will have a law that gives candidates a chance to actually 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 that the person in the image, video or audio is not them. And lawmakers -- who could wind up as victims -- thought enough of the proposal by Rep. Alexander Kolodin to give it enough votes allow it to take effect by the end of the month, just ahead of the flood of campaign media and commercials.
But the Scottsdale lawmaker was careful to limit what a court could do to simply that declaration of falsity.
It does not permit a judge to order that the offending piece be removed from the internet or wherever it is posted. Nor does it allow the candidate to seek financial damages.
What it comes down to, he told Capitol Media Services, is protecting the public interest and ensuring that people are not acting on -- or reacting to -- something that is not real.
"Deep fake technology has progressed so far that a well-made deep fake is really indistinguishable from the person themself,'' Kolodin said.
Consider, he said, a video of 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,'' with people potentially taking up arms.
"That's the kind of thing that could be really destabilizing to society,'' Kolodin explained. "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.''
What HB 2394 lays out is how to address the problem.
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, alternately, that was was "not otherwise obvious'' that it was a fake.
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.
He also said that this approach sidesteps the thorny question of a judge having to determine what could be deeper issues of whether a fake actually qualifies as satire, which is constitutionally protected.
The National Conference of State Legislatures reports 14 other states have enacted their own restrictions. Most are built around the idea of disclosure.
A new Oregon law, for example, requires campaign communications that contain synthetic media to include a statement saying that 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 to 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 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 now needs to be seen once HB 2394 becomes enforceable 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 said. "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.
And 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 what's being portrayed as the individual 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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