November 4, 2024
Over the past few years, California Governor Gavin Newsom has signed into law several measures meant to counter the use of artificial intelligence (AI) generated content for malicious political ads, the use of famous people and celebrities' likenesses without their consent, employing deepfakes, false images and videos of people to sell an agenda to influence elections that are categorically fake and untrue. Deepfakes are manipulated video forgeries, using the likeness of a well-known person. This year, he signed into state law AB 2655 to protect the digital likeness of actors and performers from having their images used by AI. It follows laws passed and executed in 2019, AB 730, and AB 602, all of which were introduced by state Assemblyman Marc Berman (D-Menlo Park) to combat the use of deepfakes of celebrities in political ads and adult sexual content without their permission. Are these laws intended to counter disinformation, or a subtle attempt to circumvent the 1st Amendment of the Constitution, which protects free speech?
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Artificial Intelligence is the new liquid gold for the 21st Century, a commodity everyone wants to be involved with, not just the large Silicon Valley tech companies. It has the potential to harness enormous power to transform companies and improve the lives of individuals across the world. AI will be used to generate new revenue streams and create new industries of commerce. With great power comes great responsibility, in this case, to ensure that AI is not used in any nefarious way.
Time magazine's September 16th issue focuses on this phenomenon and the emerging leaders within tech firms, along with individuals, like Google AI visionary Ray Kurzweil, who will be at the vanguard of this technology and balance that through the challenges of using AI. As an example, actors Scarlett Johansson and Anil Kapoor used their visibility and the legal system in India, respectively, to expose how AI can use the likeness of someone without their consent to promote a message or agenda. Both were successful in forcing meaningful change on this delicate subject.
The newly signed laws in California were brought forth to bring about similar protections in the state:
AB 602 gives residents of the state the ability to seek legal recourse against any individual or entity that creates deepfakes that place their likeness in any adult content of a sexual nature without their permission. While some deepfakes are humorous and poke fun at people or what they say, in many cases, they are the likeness of famous women in adult sexual situations. This bill is a good idea, with noble intentions, and I hope it protects the average Californian when needed.
AB 730 makes it illegal to distribute videos or other media that manipulate or distort speech or behavior intended to discredit a politician within 60 days of an election. Assemblyman Berman felt that deep fakes and altered videos (of famous and well-known politicians like Nancy Pelosi, President Obama, and Kamala Harris for example) could mislead voters and disrupt elections.
I think parody videos can be funny, it's good for voters to have a good laugh at the expense of their leaders. It is a sign of a healthy democratic system. I also understand why there needs to be some protections so that these videos are not misleading. If the creators were required to put a disclaimer before their parodies were shown, like "This is not an official campaign video, or endorsed by any campaign, but it is purely intended for satire," and scroll to the bottom of the screen, or something to that effect. It would let the viewer know that it is not an official pro or con video for any candidate but that its primary purpose is humor and to poke fun at an adult.
AB 2655 was the final bill related to AI introduced and eventually into law by Assemblyman Mark Berman (that fella sure was busy with AI-related legislation, he must be passionate about it). The law requires online platforms to remove entirely or at least label deceptive and digitally altered or created content to elections during specific periods. In addition, these platforms require certain mechanisms to allow users to report such content. The bill allows candidates, elections officials, the state's Attorney General, and local district attorneys to issue injunctions against whichever online platforms for noncompliance with the law.
The issue for me is not that certain parodies, which use the realistic likenesses of celebrities and politicians can be misleading, and can cause confusion and voters to believe something which they mistook as real. I fully support preventative methods of purposefully lying to voters about a candidate's statements or behaviors, on behalf of any party or campaign.
These measures are slowly encroaching on the 1st Amendment, probably the best and most powerful amendment to the United States Constitution. Its purpose is to protect the ability for anyone to speak their mind, and say whatever they want, without the threat of imprisonment or punishment by the government. Protected speech is not words or speech that people agree with and support, but those that you inherently disagree with and abhor. It is powerful because when it comes time for an American citizen who disagrees with certain speech, their speech will be protected equally under the law.
Minnesota Governor Tim Walz, who is running with Vice President Kamala Harris, proposes the need to push back on free speech as equated with yelling "fire" in a theater. This analogy is based on a case that was argued at the United States Supreme Court (SCOTUS). At issue was the use of words that lead to threatening or endangering others. The Supreme Court case, Schenck v. United States, was notable because it debated the clear and present danger test, which held that "words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done."
Using that SCOTUS case as a reason to push back against the 1st Amendment is not a fair implication. As said earlier, combating AI-generated videos using celebrities and well-known politicians without consent to present a false viewpoint or an agenda is wrong and should be dealt with. However, safeguarding the primary amendment to our Constitution, so that Americans can enjoy the freedom of humor directed at a politician or public figure, or express their disagreement with policies that are not popular or well-liked should also be equally preserved. One of the great privileges of living in the United States is that we can criticize our leaders freely, and to continue to be a people living under liberty, speech must be free, and protected.
* This was not written by a bot, ChatGPT, or HAL-9000, but rather by a sentient person with emotion and feelings. 😏
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