State legislatures throughout the United States are advancing legislation to regulate the use of artificial intelligence (AI) for various purposes, particularly those related to political activities and communications. Benefiting from bipartisan support, these emerging laws form an extension of the existing legislative trend to control the use and dissemination of deep fakes or synthetic media, defined as artificial production, manipulation, and alteration of data and media using automated tools. This has been seen with legislations enacted in Texas and California in the year 2019.
While the range and potential constitutionality of these laws might differ, those involved in current political campaigns need to comprehend how shifts in the legal environment could impact their political activities and advertising plans. This fact holds not just for campaign entities but also for digital, social, and mainstream media platforms that should appraise themselves of the potential liability they could face for broadcasting synthetically altered media in certain jurisdictions.
Setting an example, Texas, in 2019, enacted a law that criminalizes the distribution of deep fake videos within 30 days of an election, assuming an intention to harm a candidate or sway the result of an election. Similarly, in 2019 California also enforced a law, extended in September 2022, banning any person, group, or organizations from disseminating materially deceptive audio or visual media of the candidate with a damaging intent or aimed at misleading voters. This ban, however, does not apply to synthetically altered media that carries a disclosure declaring its manipulated nature. The law also allows candidates whose images or voices have been illicitly altered to seek legal recourse.
In May, Minnesota passed a law banning dissemination of a deep fake within 90 days of an election with harmful intent or intention to influence the election result, and without the consent of the depicted individual. Unlike other states, no exception is granted for communications that have disclaimers indicating the content is synthetically manipulated. Affected candidates can seek injunctions and the law allows the seeking of relief from platforms that disseminate paid media. The law, however, does not clearly specify whether candidates can distribute synthetically altered media of themselves without any disclaimer to viewers.
In July, Washington approved a law that bans the publication of any manipulated images, audio recordings, or videos of a candidate that leads a reasonable person to believe the media is real. It, much like the California and Minnesota laws, does not apply to synthetically altered media that carries a disclosure stating its manipulated state. Affected candidates can seek injunctions and equitable relief, whereas advertising media are exempt from the lawsuit provided they do not remove any disclaimers or otherwise alter the communication.
Apart from these, legislations are being considered in New York, Michigan, New Jersey, and Wisconsin, that could also bear implications on the use of AI in political activities. On a parallel note, Congress has been dealing with legislation to govern the use of AI in elections, with the recent introduction of the Protect Elections from Deceptive AI Act, and the Federal Election Commission is pondering on whether to initiate rulemaking on AI utilization in certain settings.
With state legislatures clearly taking the lead in enacting new laws to regulate the use of AI and synthetic media in political communications, all stakeholders, including candidates, campaigns and media platforms must stay alert to these developments, especially considering the rapid changes in the legal landscape.
This discussion is based upon an article authored by Andrew Woodson, Hannah Miller, and Lauren Johnson of Wiley on state regulation of deep fakes and synthetic media on political advertising.