Deepfake revenge porn distribution now a crime in Virginia
arstechnica.com
arstechnica.com
This is a strange law:
> Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor. For purposes of this subsection, "another person" includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic.
https://law.lis.virginia.gov/vacode/18.2-386.2
A kid makes a pencil drawing of the school principal in a compromising situation and posts it to Instagram.
Legal?
A very talented artist creates a realistic watercolor of the President in a compromising situation with Kim Jong-un and posts to Instagram.
Legal?
A kid uses software he downloaded to generate a realistic depiction of the school principal in a compromising situation and posts it to Instagram.
Legal?
Probably legal. It is satire meant to be political commentary. Not distributed with the intent to "coerce, harass, or intimidate"
As for the other ones idk, probably illegal. The last one almost certainly is, and honestly it probably should be.
Because thanks to some puritanical supreme court rulings over the past century or so, freedom of speech doesn't cover things considered 'obscene'. This has been variously interpreted to include pornography, information on birth control and abortion, and a variety of other things.
You drawing a picture is unlikely to pass that muster. Deepfakes, on the other hand, are generally designed to be falsified images.
I think the interpretation of this will lean heavily on being able to prove intent.
That bit is easy to detect most of the time...
I'm free to hold a hammer in my hand; I have freedom-of-hammer-holding. I'm not free to threaten someone with it; my freedom-of-hammer-holding does not give me a free ride if that hammer becomes my weapon of choice.
The problem isn't with the hammer, or me holding it; it's with me deliberately causing distress and harm. The problem isn't me saying something; the problem is with me deliberately causing distress and harm.
Why should someone get a waiver when deliberately hurting people for their own pleasure, simply because the weapon of choice is words or pictures?
A hand-drawn picture posted on your website would probably be more akin to self-harm in this particular example; I'm just riffing out loud on the idea that it's okay to hurt people for your own pleasure so long as the weapon is words (or pictures).
It doesnt really fall under free speech.
Harassment is not a new thing. It is covered in multiple different situations.
Courts and juries and judges handle this stuff all the time.
Freedom of speech is not absolute in the U.S., and never has been. There’s a fairly long list of boundary lines that are not protected and can get you in trouble if you cross them. https://en.m.wikipedia.org/wiki/Freedom_of_speech
> If I want to draw a picture of you doing something nasty and post it to my own website why should the state stop me?
Maybe the same reason the state stops you from hitting or shooting people? Turn that around - why shouldn’t someone stop you from doing something mean, degrading or damaging to someone else publicly?
We could discuss reasons why or why not, but that would also be beside the point. The current law defines illegal speech to include a whole bunch of things your nasty picture might constitute: the harm principle, the offense principle, libel, slander, obscenity, pornography, incitement, fighting words, right to privacy, and public security, just to name a few.
I think we can probably agree kids would be wise to avoid doing the specific things you mentioned.
But importantly, when a kid breaks a law there is typically a separate system for juveniles...
>> where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor.
First amendment gives authorization. Had they meant the more colloquial "without permission of the subject" they would have said so. They are allowing authorization from a variety of sources, the constitution included. So #2 is fine as basically anything to do with the president, in his role as president, is fair game.
And they said you have to know or reasonably know that you do not have permission. So the inner thoughts of the artist is an issue and it is very hard to prove knowledge of a negative fact. If you think you have permission somehow, then maybe you do. So if the kid thinks the constitution protects his work, maybe that's enough to avoid the law even where the constitution does not.
It's a badly written law. I suspect written by people who know it is doomed to fail.
This part matters
2: legal
3: legal, unless there's intent to coerce, harass, or intimidate which would tip it into being illegal.
There are some serious first amendment issues here. Hustler Magazine v. Falwell, an iconic case that set the tone for modern supreme court arguments, turned on a verbal 'deepfake', the depiction of a celebrity in a supposed real sexual situation without their consent. That involved a fake interview with Falwell published in Hustler. I don't see how that is legally distinct from putting his face on a body double. Both are claiming an untruth, the creation of a fake sexual history, as a form of legitimate parody and comment on their public persona.
Also, half of all porn films. Does using a Charlie Sheen lookalike in the XXX version of Two and a Half Men constitute deepfake? ("Two and a Half Men", "The Big Bang Theory" ... Chuck Lorre was just begging for porn parodies.)
Download/watch "The People v. Larry Flint". I used to use clips as intros to first amendment and copyright law. It is a great movie.
That's not a "deepfake". One is a satirical printed ad aimed at a celebrity (satire has been pretty frequently protected speech) and the other is malicious creation of an artifact to attack random people (typically women). You know that there are plenty of unprotected forms of speech (harassment and assault at the top of the list) and it seems like that's what the legislature here is trying to do, add this to that list.
>>Does using a Charlie Sheen lookalike in the XXX version of Two and a Half Men constitute deepfake?
No. That actor isn't credited as "Charlie Sheen", he's credited as <actor's name>. This is not the same thing. He is not representing himself as actually being Charlie Sheen, but possibly the character of "Charlie Sheen".
You're a man of the law: how would you protect these women from revenge porn if this law offends you so? Or are you more of a "sticks and stones and sending my mother an image of what appears to be me getting penetrated in my asshole will never hurt me" type of guy?
It's very strange to argue that deepfake revenge porn is in any way comparable to Hustler v Falwell; it seems like you'd have to be almost totally unfamiliar with that case – or with deepfakes, or with revenge porn – to draw a connection.
I Am Definitely Not A Constitutional Lawyer.
So couldn't they argue the statute would not apply to the Hustler-Falwell parody for those two reasons?
Does the wording in fact contradict Hustler Magazine v. Falwell? Would it outlaw satyrical images of politicians? Thus my question above.
What I understood from recently rewatching The People vs Larry Flynt was that LF and Hustler magazine were acquitted because nobody would reasonably believe that Jerry Falwell had actually had sex with his mother. It seems evident that the material difference between that case and today’s deepfake is how likely anyone would be to mistake it for the truth.
Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, [[[ and the lower courts' finding that the ad parody was not reasonably believable must be accepted. ]]] "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here.
Em. mine.
I forgot to mention perhaps the greatest political porn title: "Who's Nailin Palin?" ... the perfect recent embodiment of the Falwell holding.
https://frontpageconfidential.com/larry-flynt-supreme-court-...
According to whom?
Falwell involved an absolutely perfect fake
If that were true, written accounts would be as video when used as evidence in a court of law. You may be surprised to learn that this is not in fact the case.
As I showed you a moment ago, even the syllabus of Rehnquist's opinion acknowledges that no reasonable person could have believed the Hustler ad to be true.
I'm becoming convinced that you're arguing for the sake of arguing.
One could make the argument that due to the ubiquity of photoshop and "shooped memes," the fact that both livestreamers and TV networks regularly employ digital makeup filters, and the continued press that deepfake technology recieves -- there is no reason for any reasonable person to assume any piece digial media hasn't been substantially altered...
(especially now that the term "fake news" has become a tumour on our lexicon)
So it could be argued. But color me skeptical as to whether such an argument would convince any judge. For one, sex tapes of so called clean cut stars have emerged before. For another, most reasonable people would agree that there is a significant difference in how we perceive the realness of text and photorealistic images. People understand that text is inherently a medium in which reality is filtered through the interpretation of the writer. In other words, we’re comfortable with the idea that text is an unreliable medium. Photorealistic images are different in that regard. If people can’t tell that a video is fake by looking, it’s reasonable to expect that they will assume it’s real.
Who's Nailin Palin?
That’s ridiculous. Nobody who knew Sarah Pailin would mistake an actress for her.
"During a segment on whether Palin will run for the 2012 Republican presidential nomination, [Fox News] aired a photo of Fey posing as the former Alaska governor."
https://www.nydailynews.com/news/politics/fox-news-mistakenl...
So ya, people who did know her image very well did in fact mistake an image of the actor Tina Fey for the real Sarah Palin. It happened several times during the campaign.
So if you say something horrible about a public figure, knowing that it is false, and presenting it as true, if it’s outrageous enough to be obvious parody then it’s permitted. But if it’s stated as truth and emphatically presented as truthful and not as parody, then the public figure exception is lost?
Very hard not to wade into the quagmire of horrible statements people make about a certain politician which a large portion of the country accept as truly factual in this context...
Trying to make a law against this could actually be a massive overreaction.
I'm a regular joe consumer, and as far as I can tell, there are either no such laws, or they are never enforced.
I would note that the deepfakes law is unlike harassment crimes, which are not illegal because of what you're saying, but rather the person to whom you're saying them.
Even if you are found guilty of harassing someone verbally, you would be free to make the same statements about that person to someone else (assuming they don't also constitute slander, by virtue of being untrue). Basically, there are very few limits on what you can truthfully say about someone; harassment law only applies when you're saying such things to an unwilling listener.
One problem we're going to face is that the defence that "it wasn't me it's obviously fake" will apply to all forms of media too. I never said "grab them by the pussy" it was fake, I never raped that person on CCTV it was fake, and the existence of deepfake tech provides reasonable doubt in many cases in which previously the doubt was limited and a sound conviction could be found.
Yes, I think deepfake revenge porn is terrible, and people who make it are douchebags. But - we've all seen our politicians support some truly stupid stuff and make some truly ignorant statements. Do we suddenly just assume that these same people managed to write this law with everything well-defined, and with appropriate checks and balances in place, without external critical thinking applied?
edit: As a specific example, the only other non-dead comments I saw minutes after you posted this dealt with how this is different from existing parodies and the use of body-doubles in film. Is there a process formalizing consent from actors and actresses in such cases? There probably should be in the case of body double. But it would be an unreasonable expectation in the case of parody. But these are all questions that need to get answered before. Asking those questions and observing that they appear to not have been dealt with doesn't mean you think deepfake revenge porn is A-OK.
The 1st only extends to what you can say on your personal property.
There is a reason you can't yell "FIRE" in a crowded theater, it's because you are infringing on the property rights of the people who bought a ticket to the movie, and the landloard who is expected to keep everyone safe.
You don't have any property rights to any other human other than your own body by default.
That being said, the future will be filled with AR glasses with the nude version on default and that's going to be very weird.
Nothing about what you said is correct. The FIRE in a crowded theater argument has nothing to do with property rights. It's about creating dangerous situations.
Deep fakes aren't infringing anyone else's property rights, other than maybe very tenuously arguably considering likeness "intellectual property".
In the United States however you have no expectation of privacy in public, so a photograph taken of you in public is fair game. See: Paparazzi
https://en.wikipedia.org/wiki/Poe%27s_law
Actually I wonder where this family ideas come from. There must be some engine promulgating the bizarre notion that the only real rights are property rights and all others must derive from them or be dismissed.
And antebellum mansions to the descendants of the slaves who built them?
Perhaps it is merely a _claim_ of consistency just convoluted enough that those who are advantaged by the ideology can jump on board.
This post is not an endorsement of objectivism by the way, both are ludicrous.
Taleb nailed this: there is no single perfect scale-independent political philosophy.
A quick pass at what I prefer at various scales: Family: Something a lot like Communism (from each according to his ability, to each according to his need). Neighborhood: Libertarianism (mutal respect for property boundaries and common spaces). City/Town: Democracy. State: Republic. Federal: Federal Republic.
Obviously these are just my preferences, although I think the family level one is virtually universal among people who want their families to succeed. The point isn't that I'm right or wrong about any level, it's that different systems are optimal for different scales.
It's interesting that many of the most notorious times are when that neighborhood level breaks down: Moments of extremely intrusive totalitarianism such as the European witch trials, China's cultural revolution, cults.
It's also interesting that people seem to naturally form similar organization up to the neighbor sized groups but above that anything can happen. I'm guessing this is the result of evolving in essentially neighborhood sized groups. I suspect there is something useful to be found in this stuff.
"Fire in a crowded theater" is trope which means the First Amendment does not protect speech that is very likely going to cause imminent harm. It has nothing whatsoever to do with property rights. It is a "trope" because in rhetoric, it almost always used incorrectly to justify First Amendment exceptions which have nothing to do with imminent harm.
Also, in the US, if you are in public a photographer can take a photo of you and publish it. You have no "property rights" over the photo whatsoever.
Not a lawyer, so please correct me if I'm wrong, but I thought you have the right to prevent your image from being used to endorse a product without your permission.
https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1...
So it's a "myth" only in the sense that it is a sure marker of a dishonest argument: if someone uses it in speech, they are almost certainly using it to try to justify something which is not the same thing at all.