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US Law
A comprehensive overview of existing and potential legislation in New York, California, Florida, and at the federal level aimed at regulating the dissemination of deepfake pornography.
The rise of deepfake technology has posed a significant challenge in the realm of artificial intelligence (AI), particularly in the context of deepfake pornography. Hyper-realistic digital forgeries, generated using advanced multi-layered learning algorithms, can seamlessly replace faces, alter voices, and create entirely synthetic content that is indistinguishable from reality.
This article offers a comprehensive overview of existing and potential legislation in New York, California, Florida, and at the federal level aimed at regulating the dissemination of deepfake pornography.
Existing New York laws protect “depicted individuals” from the nonconsensual distribution of deepfake content that is intended to harm the emotional, financial, or physical welfare of the depicted person. For example, if a digitized individual appears to be giving a performance she did not perform or to be actually performing and the performance was subsequently altered, distributing such content could be a violation of New York Civil Rights Law § 52-C. This law was expanded with N.Y. Penal Code § 245.15 (2024) to prohibit the nonconsensual distribution of a sexually explicit image of another individual, including images created or altered by digitization. New York Civil Rights Law § 52-C protects an individual’s private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual.
California’s laws closely resemble those of New York, addressing whether the content creator was aware of the depicted individual’s lack of consent. California allows victims to seek monetary damages and can request court orders to take down the material. Cal. Civil Code § 1708.85 allows victims whose images have been unlawfully used in deepfake porn to seek damages and ask for court orders directing defendants to take down materials from websites and destroy all copies. Websites that are used to make false content or deepfakes could also potentially be held liable. Section 311.11 of California’s child pornography law forbids any image (real or IA) that “depicts a person under 18 years of age personally engaging in or simulating sexual conduct.”
Florida’s Section 836.13 prohibits the willful and malicious promotion of an altered sexual depiction of an identifiable person without her consent and is considered a third-degree felony. This law also amended the term “child pornography,” adding to the definition “any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable minor engaged in sexual conduct.” If Section 836.13 is pursued in civil action, injunctive relief, monetary damages (greater than $10k or actual damages), and attorney’s fees and costs could be awarded.
Although the U.S. has no federal laws specifically banning the creation or sharing of deepfake images, Digital Millennium Copyright Act (DMCA) complaints are currently used to combat the proliferation of deepfake porn on a federal level. If the images depict a minor, federal child pornography laws may apply (18 U.S.C. §§ 2252, 2252A, 2256(8) (2024)). Under 15 U.S.C. § 6851, individuals could recover $150,000 and litigation costs if their nude pictures are disseminated without their consent.
Several potential federal laws are being considered. The DEFIANCE Act would allow victims to sue if those who created the deepfakes knew or “recklessly disregarded” that the victim did not consent to its making. The Kids Online Safety Act, or KOSA, would impose a legal “duty of care” on tech platforms to protect minors from dangers including harassment, bullying, anxiety, and sex abuse—or face enforcement action by the Federal Trade Commission. This would remove some of the protection DMCA 230 provides. Lastly, the DEEPFAKES Accountability Act of 2023 would require creators to digitally watermark deepfake content. This legislation would also make it a crime to fail to identify malicious deepfakes, including deepfakes depicting sexual content.
Mitigating risks associated with deepfake pornography involves proactive legal planning, adherence to emerging regulatory frameworks, and potential avenues for compensation if you are a victim. Early intervention and legal counsel are essential to address concerns related to deepfake pornography involvement.
