Endless Thread - Deepfake Law 101

Episode Date: June 23, 2023

Since the creation of deepfakes in 2017, the AI-powered technology that swaps faces into videos has become commonplace, particularly in pornography. Using someone's image without their consent to create porn can have damaging effects, emotionally and physically. But no federal law criminalizes the creation or sharing of non-consensual deepfake porn in the United States. Endless Thread co-hosts Amory Sivertson and Ben Brock Johnson speak with producer Dean Russell about deepfake law and the movement for change. Credits: This episode was written and produced by Dean Russell. Mixing and sound design by Emily Jankowski. Amory Sivertson and Ben Brock Johnson are the co-hosts. (Photo Illustration by Adrien Fillon/NurPhoto via Getty Images)

Support for Endless Thread comes from MathWorks, creator of MATLAB and Simulink Software, to design and develop engineered systems, accelerating the pace of discovery in engineering and science. Learn more at Mathworks.com. Support for WBUR comes from Is Business Broken, a podcast from the Mayrotra Institute at Boston University that explores questions like, why is innovation in health care so hard? Is ESG just greenwashing? of course, is business broken? Listen, wherever you get your podcasts. Hey, everyone. Heads up. This episode deals with sexual harassment and abuse. WBUR Podcasts, Boston. Amory, Ben. Dean Russell. Happy SCOTUS season. To all who celebrate. All who celebrate. Oh, that's right. This is the story of what happens when nine people, between the ages of 50 and 74, decide the fate of the Internet. Oh, no. Perfect.

So in February, I heard about this one case at the Supreme Court. Your argument this morning, in case 21, 1333, Gonzalez versus Google. Mr. Snapper? Gonzalez versus Google. GVG. So back in 2015, Paris saw a string of terror attacks. ISIS killed 130 people, including 23-year-old college student Noemi Gonzalez. The plaintiffs suffered a terrible fate, and their argument is it's because people were radicalized by ISIS.

The Gonzalez family claimed that Google's subsidiary YouTube used its algorithm that promoted ISIS recruitment videos. It was hosting and disseminating terrorist adjuteprop. In other words, Google aided and abetted the murder of Noamie Gonzalez. Wow. But there's this one law that protects companies like Google from these sorts of claims. It's a big part of our story today. The law is called Section 230. Oh, Section 230.

It's like... It offers some sort of protection for websites I'm getting. guessing. But it's also like this oddly shaped political football where I feel like Trump has talked about it in ways that don't make sense. Senator Josh Hawley has talked a lot about it. And then like I feel like on the Democratic end, people have also talked about it. But none of them really know what it is. Yeah. So maybe flesh it out first, Dean. It's complicated. But it's essence. sort of, we can talk about that. Section 230 of the Communications Decency Act

says that websites and platforms like Facebook, Google, Twitter, none of them can be held liable for illegal content posted online by their users. Aha. This is big techs like get out of jail free card. Like it protects them from being sued for hosting drug sales and arms trade and like racist ads and terrorism. and basically you name it. They can be shamed, but they cannot be sued.

But here's the thing. The Supreme Court decided for the first time to take this case that could change that, maybe even get rid of Section 230, and that would fundamentally change the Internet. But it could also change this one other thing, something that we've reported on, deepfakes.

And that, is what we are talking about today. I'm Dean Russell. I'm Amory Sievertson. I'm Ben Brock Johnson, and you're listening to Endless Thread. We're coming to you from WBUR, Boston's NPR station. Today, producer Deepfake Dean brings us a story about the dark side of deepfakes and the law. I never want that nickname ever.

Oh, it's back. Sorry, Deepfake, Dean. We're entering an era in which our enemies can make it look like anyone is saying anything at any point in time. even if they would never say those things. For instance, they could have me say things like, President Trump is a total and complete dipshit. So often when we talk about deep fakes, we talk about the fun videos, right?

Like Jordan Peel with Obama's face, fake Tom Cruise on TikTok. I love fake Tom Cruise, big fan. But those videos are not where deep fakes begin. Oh, yeah. This is one of the great gifts that Reddit hath given us. Do tell. So I think in 2017, a Redditor named Deepfakes started making fake celebrity porn with AI.

So they took images of celebrities like Gal Godot, aka Wonder Woman, and Scarlett Johansson, aka Ghost in the Shell Woman, and overlaid their faces onto the bodies of porn actresses. Yeah. According to the research company Sensity AI, at least, 90% of deep fake videos are porn because the internet. At the end of 2017, I had heard a news report about deep fakes and their sudden appearance on Reddit. And I immediately thought, well, where is the law in this? Rebecca Delphino is a law professor at Loyola.

She spent years focused on how the legal system addresses deep. deep fake porn. To her, it clearly is an invasion. It's harmful, it's abusive, an infliction, emotional distress, it's harassment. But as you would find out, in most places, deep fake porn is not illegal. What? So I learned this factoid while producing our deep fake episode in 2022. And I remember that like my brain basically broke because like there are so many

many laws out there about copyright, right? Like, you can, you can't play this music with your YouTube video. You can't use a clip of the day after tomorrow on your podcast. You can't call something choose your own adventure without being sued by choose your own adventure. But if, you know, someone wants to take Scarlett Johansson's face and put it into an explicit video and then post it online, they can do that. There is no federal criminal law or civil. civil remedy. You know, the absence of the law is effectively an immunity. I should say most countries don't have deep fake laws. The UK has proposed some China. A notable exception requires consent for a deep fake. That's interesting. Like China famous, famous for

propaganda? Yeah, exactly. But there is no U.S. federal law. And in one respect, it's not surprising that in 2017 that was the case, no U.S. federal law. But on the other hand, deep fake porn feels very clearly not okay. Okay, so yes, obviously not okay. I'm trying to imagine the argument that a deep fake porn creator would make. I don't know what it would be, but my guess would be is that it's sort of like creative work. Ugh.

I know. I know. I'm sorry. Listen. I'm sorry. I just need to, yeah. I'm just trying to like imagine what the, what is the other side of the argument. Clearly some people think it's okay.

Some people think it's not a big deal. Some people think it's like worth doing. Do they think it's okay or they just, they do it because they're kind of a sick person and there's nothing stopping them and they can, they just get. kicks out of it, so they do it. Like, I don't think that they, I don't know, I would like to think that they know it's not okay and there might not be a law, but I hear Amory, am here to tell you, it's not okay. So when Deepfakes first start, Rebecca is watching this turn into a plague for celebrities, like in particular celebrity women. Like I mentioned that 90% of deep fakes are porn.

90% of those deep fake porn videos are of women. And a shocker to no one. Yeah, I know. Vice journalist Samantha Cole put this particularly well in 2018 when she wrote, Deepfakes were created as a way to own women's bodies. I think that's why they do it. I think it's just to put women down and to take advantage of technology in a way that puts women down. Right.

And a lot of this is because, right, like we're talking about not having consent. Rebecca Delphino saw the future and had these bigger concerns. Not for celebrities who have platforms to correct the record, if you will, but the implications for private individuals. Right. Because when this all started out, you actually needed, I mean, you know, just like in our last Deepfix episode, right? Like we had to have a lot of raw data to input into the machine learning algorithms in order for them to complete the deep fake. So I can see that. It makes sense that, you know, people would start with celebrities. I mean, none of it makes sense as we've been talking about, but it makes sense that people would start with celebrities. Because there's a lot of, there are a lot of images to work with.

Yeah, exactly. But, you know, now it's 2023. and not only is the tech more powerful and, like, more available, like, you can just go and, you know, use a deep fake creator online. We have more photos of ourselves online, which means anybody can be targeted. And if you are just a regular non-celebrity who has been, you know, victimized in some way, like some other way, like violence or domestic abuse, often the only thing that you have is the law. As deeply flawed as it is often, it is the only thing you have. And so, you know, what happens when the law refuses to see you as a victim? What happens if one day you find out that you've been deep-vaked? What do you do?

More on that in a minute. At Radio Lab, we love nothing more than nerding out about science, neuroscience, chemistry. But we do also like to get into other kinds of stories. Stories about policing or politics, country music, hockey, sex, of bugs. Regardless of whether we're looking at science or not science, we bring a rigorous curiosity to get you the answers. And hopefully make you see the world anew. Radio Lab, adventures on the edge of what we think we know. Wherever you get your podcast.

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with your address, with your surname, with your college, and videos of you in extremely explicit porn. This is Sophie Compton, filmmaker, activist. She recently dug into the world of deep fake pornography for her documentary Another Body. And she started with this question, how common is it for real people to get deep faked? In the research phase for that film, I just put a call out on my social media asking for anyone that experienced intimate image abuse to get in touch and was really shocked at the flood of messages just initially through my networks that came forward.

Sophie is part of an organization called My Image My Choice, which, as the name implies, helps people who have experienced non-consensual misuse of their influence. image. She's heard dozens of deep fake stories and says that for a lot of people, the first thing that happens when they see themselves in these videos is a kind of cognitive dissonance. Like, you don't know what it is that you're seeing. And then the second part hits you, the abuse. When I paint that scenario to like women and young women, like we just know how violating that would feel because we deal on a daily basis with the way that our image is used and misused and misrepresented and the fear of being painted in a certain way, you know what the reputational costs of that might be. Like if you've been a girl growing up in a school, like you know that

you do not want to be branded the slut or whatever. And you know that that can have a tangible impact on your life, you're relating it with your body, your relationships with men, etc. Oh, yeah. I mean, one of the things that I think is at the center of this is that sex can be such an empowering thing and it can also be such a vulnerable thing. And so as much as I would hope that if something like this happened to me, I would be able to brush it off to some extent. I also think that that hope is absolutely no match for the intense vulnerability and frustration and like loss of faith. in humanity that I would feel if something like this happened to me. Right. I do think fundamentally this is sexual assault, right? Like, because someone somewhere is making you do something that you have not consented to do. Yeah.

Anecdotally, I have read what, you know, what people say about this online. Like, I've read a lot, a lot of comments. And I do often see, you know, to Sophie's point, I do often see men or like male presenting people who don't seem to grasp why this is a big deal. Like, it's fake. Who cares? That's a recurring statement. Oh, okay. So I wasn't far off necessarily on why some people are doing it. Right. That's right. Yeah. And I mean, many of them are probably like Andrew Tate trolls, but some genuinely, you know, I think to your point, Ben, may not really understand why there are or that there are real world consequences. Like, there are social impacts. There are job impacts. There is a loss of trust because you don't know who did this.

And oftentimes it's someone you know. Even there's a physical threat because people may think that you are actually soliciting sex. The lack of control and agency that you have over your body is what that violation consists of. And the knowledge that people will be watching this. And some people will probably take it as a joke. Some people will probably, like, find it extremely erotic. People might be really into it, you know? And all of these things are completely out of your control.

There are publicized cases of this, like everyday people or not quite celebrity influencers being deep faked. And I want to be careful about talking about them. Because there is an inherent problem in discussing deep fake porn and that you know, like, I know someone listening is just going to Google. Like, they just are. And so by talking about it, you risk perpetuating the harm. I reached out to a lot of women who have had this experience,

and no one was interested in reliving this or running a risk. And I don't blame them. But talking about it also raises awareness. And so I will use one example that has already gotten, a lot of attention recently. Back in January, a popular Twitch streamer named Brandon Ewing, who uses the screen name Atrioc, he admitted to paying for deep fake porn that featured other Twitch personalities, peers, women. And this blew up and the names of the women got out, and some responded in tweets.

And so, Amory, if you don't mind, I'm going to ask you to read one of those. I want to scream. Stop. Everybody fucking stop. Stop spreading it. Stop advertising it. Stop. Being seen naked against your will should not be a part of this job.

Thank you to all the male internet journalists reporting on this issue. Fucking losers. And then she tags some guy named Hunter who writes about gaming or something like that. But the fact that I am a male journalist reporting on this, you know, albeit some names that is not lost on me. After the uproar, Ewing released an apology video. I'm sorry. I'm just fucking sorry. I don't support this stuff. I don't believe this stuff. I'm not like a fucking advocate in any way. I regret it. I would never do it.

And he retired from Twitch, but you can't really undo the harm. So one of the survivors, the term Sophie and others used for people, who experienced this, one of the survivors she threatened to sue. She wanted legal retribution. Unfortunately, that never really went anywhere because attorneys refused to take up her case, which brings us back to the law. There are a few ways of approaching this problem, legally speaking. None of them are really ideal or very easy because there are, you know, there's a lot of challenges. And I want to go through a couple of them. So challenge number one. one. There's no federal criminal law against deepfakes. There is a law against cyberstalking that you

could sort of bend to your, you know, to use, but prosecutors still have to prove that deepfake creators intended harm. And that's not really easy. Challenge number two, who is the victim? So like, let's say you want to sue in civil court for damages, like forget criminal charges. There are a few common law precedents that you could use, but they require that the plaintiff be an individual. And a deep fake, by its very nature, is two people. So legal experts say these precedents may not actually work. Oh, my God. What a weird challenge. Meaning the person who's, I mean, if we're using an example of like a celebrity face and, you know, porn star's body, those are the two people involved?

Exactly. Which I think is actually, that's fascinating because I think that portends a lot of interesting challenges in the future. Absolutely. Absolutely. The third challenge, finding the perpetrator, and this is the biggie. Even if you can get past the problems that I mentioned, you still have to find the deep fake creator. And they could be anywhere. They could be in another country for all you know.

They could be anyone for all you know. We still don't know who deep picks the user is. Exactly. Right. The person who started this whole mess. Oh. The easiest thing would be if you could just forget the creator and go after the website. The website, after all, hosts the video.

And so you should be able to sue them, right? Or at least be able to force them to take it down. Section 230 actually gives them the ability to tell people no. and there's no recourse if they do that. Again, Loyola Law School's Rebecca Delphino. Say that ten times. Loyola Law School. Loyola Law School.

Loyola Law School. Loyola Law School. If someone reaches out to Facebook or Twitter or Instagram and says, look, there is this deep fake pornographic video of me, I want you. to take it down. Those ISP providers could tell the individual, we didn't make the video, we're not responsible for it, we can't help you. So we're back to Section 230 of the Communications Decency Act. The Supreme Court took up the case against Section 230 this year because it protects Google from being sued for the hosting of terrorist propaganda, right, like the Gonzalez versus Google thing that we started with. It also prevents websites from being.

sued for hosting non-consensual deep-fake porn, which means that Google, Reddit, Twitter, etc., you can ask them to take down a deep fake, but they don't actually have to. Like Pornhub says that it doesn't allow deepfakes, but they are there. And then there are these websites that are predicated on deep fake porn. Like that is their whole business model. And again, they are protected by Section 230. Rebecca says that the intent of the Communications Decency Act was different. That was passed in 1996, and it was designed to promote the development of internet and social media networks.

In 1996, websites were pretty basic, right? Like, they weren't as much a part of everyone's life. Congress kind of thought of them as these, like, innocuous bulletin boards. And the idea was that these bulletin boards should have immunity from lawsuits for the third-party content. So Section 230 was designed for the little guy, right? Like the small business startup. The OG blogger, the GeoCities blogger. Yeah.

That's right. So like imagine if you could sue Reddit every time something illegal showed up on it. Like it would never have gotten past week one. Yeah, I mean, this is what I keep thinking about when it comes to this question of like, what do we do with Section 230? You know, for better or for worse, often for worse, like the way that all of this is developed is these tech companies basically figured out that users posting content on the Internet for free could be aggregated and monetized. And Section 230 basically allows that fundamental, you know, evolution of the Internet to exist. And so if we make Section 230, like not a protection of tech companies, it really would turn everything upside down in a pretty destructive and messy way.

Well, I wonder if there's a way to rein this in kind of like the First Amendment, not to compare the actual content of the legislation, but the First Amendment is so broad, right? It's just like, free speech. And then at some point along the line, we say, you know what, hate speech, not protected. And you can't yell fire in a movie theater. Like, what is the version of that that we can apply to Section 230 so that it still gives. the internet, the freedom that it needs to be the internet, but also says, you know what, that's crossing a line and we're not, we're not going to stand for it, and we're not going to support you in not taking action against it. Yeah, but if you ask Google, they would, they would tell you that, you know, free speech. Yeah. They don't need those sort of, those, those, you know, clarifications, right? Like, Google says that they take deepfake seriously. They take them down, and they employ people and AI to kind of find and snuff out illegal and harmful content. Rebecca Delphino says, you know, she doesn't see it that way.

There's no consistency in the takedown requests. Every entity applies their own individual timeline based on their resources. Every entity has a different standard of proof that they require the victim to bring forward. And my concern is that the amount of power, over something that is criminal that has been given to a private actor to make these determinations. It's troubling.

So I will wrap with some good news and some bad news and what's your vote? Where should we start? Let's go bad first, baby. Yeah, get that out of the way. Yeah. So for people like activist, Sophie Compton,

the bad news came last month. The Supreme Court threw out Gonzalez versus Google. The case was sent back to lower courts and a similar case, Twitter versus Tomna, which also looked into big tech's responsibility for terrorist content, the court ruled 9 to 0 in Twitter's favor. Wow. So section 230 is unchanged.

You want to know the good news? Of course I do, Dean. Please. It's a bad time. We can use some. All of the deep fake porn creators have gone to therapy and are reconsidering their choices. The real good news, the real good news is that there has been some change. Survivors and activists concerned about non-consensual deep fake porn have formed groups like, you know, my image, my choice, which I mentioned to help people who've experienced this harm and also to advocate for those protections. And while it is not a federal crime to make non-consensual deep fake porn, a few.

states have been looking into it. California and New York now have laws that allow residents to sue deep fake creators in civil court, and Virginia and Georgia make it a crime to create and share this content. Wow. Hell yeah. I think that's that makes sense. That makes sense to me. Even in states where criminal law hasn't quite caught up, some prosecutors are figuring it out by using revenge porn laws and things like that. Like in April, a 22-year-old Long Island man was sentenced to six months in jail and registered as a sex offender

for deep-faking at least 11 women from his hometown. Oh. I will say, though, I really do stand by the throw-em-in-therapy, not in jail thing. I just want to say that, even though it's like, I am pleased to see states taking this seriously and, you know, holding people accountable,

but, yeah, I don't think throwing deep fakers in jail is going to fix the problem. I mean, I'll add one more thing, which is, you know, not long after that Long Island case, a U.S. congressman from New York introduced a bill that would actually make sharing deepfakes a federal crime. It would give survivors, a way to seek relief, and it would maintain their anonymity in those cases.

So, you know, even without a change to Section 230, there could be some protections. Again, Sophie Compton. It feels like we're close, but we need, you know, that one more push from the public to demand this change, honestly. I'm glad to hear these state laws are happening, because as I'm a state law, you know, as I said before, I do think this can fundamentally be looked at as sexual assault. And the other thing I'm thinking about is that even, you know, these state laws are, I think, going to face challenges, right? Because as we said before, we still don't know who the original

deepfakes user is. So, you know, it's going to be a chicken and egg problem, I think, in some ways. When we make it a federal crime, we kickstart a process of needing to identify users. And at the same time, that sort of anonymity that people can achieve online is another kind of fundamental underpinning of the Internet as we know it. I'm trying to gather my thoughts. Sometimes my first reaction is just like, burn it all down. Unplug it. Unplug it. Somebody unplug it.

Cut the cord. I agree. Yeah, I agree. I think we have made the Internet so big and so vast. And I think the same human power, brain power, that made the Internet the way it is can also find a way to fix the problems that we have created. And we need to take responsibility and figure out a way to do that. Endless thread is. a production of WBUR in Boston.

This episode was produced by Dean Russell, and it is hosted by me, Ben Brock Johnson. And me, Amory Sievertson, and DeepFake Dean, of course, henceforth only to be known as Dean Russell. Mix and sound design by Emily Jankowski. The rest of the team is Summonit to Josie, Quincy Walters, Grace Tatter, Nora Sacks, Matt Reed, and Paul Vicus. If something like this has happened to you or someone you know,

you should know there are organizations that can help, including the Cyber Civil Rights Initiative, my image, my choice, in the UK Revenge Porn Helpline. Did we fix all the problems? Did we do it? Perfect. World fixed.

I also would like, I just want to advocate for consensual deepfakes. Hmm. I just feel like I'd be thrilled if someone made a very silly deep fake of me. If you want to put my head on someone. on someone winning a mini golf tournament or something. That's what I'm saying. Like, put my head on the end of a twinkie that dances. You know?

I want a donut of my face. Is that too much to ask?