The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Axios reports that several important legislators have proposed new criminal laws banning the creation or distribution of so-called "deepfakes," computer generated videos that make it seem like someone did something they didn't actually do. The technological ability to create deepfakes has caused a lot of justifiable concern. But I wanted to express some skepticism about the current round of proposed new criminal laws.
Let me focus on one prominent example discussed in the Axios story, Senator Sasse's proposed Malicious Deep Fake Prohibition Act. Under the bill, it would be a federal felony for individuals to:
(1) create, with the intent to distribute, a deep fake with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct under Federal, State, local, or Tribal law; or
(2) distribute an audiovisual record with— (A) actual knowledge that the audiovisual record is a deep fake; and (B) the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct under Federal, State, local, or Tribal law.
This strikes me as a bit odd. It's already a crime to commit a crime under federal, state, local, or tribal law. It's also already a crime to "facilitate" a crime—see 18 U.S.C. § 2 at the federal level, and state laws have their equivalents. Plus, it's already a tort to commit a tort under federal, state, local, or tribal law. This new proposed law then makes it a federal crime to either make or distribute a deepfake when the person has the intent to do the thing that is already prohibited. In effect, it mostly adds a federal criminal law hammer to conduct that is already prohibited and that could already lead to either criminal punishment or a civil suit.
Even if that seems a reasonable goal in theory, I think it's a bad idea to make federal crimes that prohibit acts undertaken in furtherance of any criminal law or tort. We see these provisions occasionally in federal criminal law, but experience with them suggests that they're misguided. I understand the goal. You want to punish an act that worsens an already-bad thing. That seems reasonable at first blush. But the problem is that it underestimates how much conduct is conceivably a low-level crime or tort, and how unrelated the crime or tort may be, when the statute might be applied.
We've seen this problem with the Computer Fraud and Abuse Act. The CFAA makes it a felony to commit an unauthorized access "in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." 18 U.S.C. § 1030(c)(2)(B)(ii). Federal prosecutors have been very creative in coming up with such crimes and torts. For example, in the Lori Drew case, the government charged Drew with violating MySpace's terms of service with intent to further the tort of intentional infliction of emotional distress under state law. In United States v. Auernheimer, the government changed the defendant with unauthorized access under federal law in furtherance of unauthorized access under state law. And in United States v. Cioni, the government charged the defendant with unauthorized access in furtherance of another federal unauthorized access statute. The law is so filled with overlapping crimes and low-level torts that it's often easy to find something that might apply.
Consider an example of how the broad language might work with Senator Sasse's bill. Imagine Sally creates a deepfake in which she imposes her own face on a video clip of President Trump at a political rally. Sally thinks her clip is hilarious, as it really looks like Sally is President. The video is so funny that Sally wants to show it to her friends. She decides to throw a party with a live band at which she will hand out copies of her hilarious deep fakes video. The live band is very loud, however. It's so loud that the party is tortious under state law, as it's a private nuisance to her neighbors.
Would Sally's loud party be a federal felony under the Sasse bill? It might be, I think. Sally would be distributing copies of a deepfake video. It's a deepfake of herself, but that doesn't appear to matter under the Sasse bill. And she would be distributing the deepfake video with the intent to faciltate conduct that is a tortious nuisance under state law. Distributing the videos would plausibly be "facilitating" the loud party because the distribution of the videos would be the reason for the loud party and the reason people would attend it.
This is obviously far from what the drafters of the bill intended. But that's the problem with making it a federal crime to do something with intent to further any crime or tort. There are a ton of low-level crimes and torts out there. Intentionally facilitating any of them violates the new federal crime even if the harm has nothing to do with the harms that Congress had in mind.
The Sasse bill also has a potential problem of not distinguishing between devices and files. Reading the bill, it prohibits the distribution of an audiovisual record with the intent that the distribution would facilitate tortious conduct. But does that include a distribution of the physical device that includes the record? Let's say Bob has an old cell phone that he knows contains a deepfake. Bob gets mad at his neighbor Carl, and in anger he throws his old cell phone at Carl. Is that a prohibited act of distributing a deepfake in furtherance of the tort of battery, and perhaps even a 10-year felony (instead of a 2-year felony) because it "facilitates violence"?
Maybe, maybe not. But the fact that this is even a question suggests that the bill's language is overbroad. I'm a big fan of Senator Sasse, and I commend him for trying to take on this important question. But I think any deepfakes law should be a lot narrower than this initial draft.