This seems like the main point - it's not that court won't accept a deepfake defense, but you would have to prove that it was faked, just like any other convincing evidence
This sounds ridiculous since we lived most of our lives in the video-is-real era that has sort of been coming to an end. I recall the Kyle Rittenhouse trial had an interesting take on this where the defense asked to throw out upscaled video which contrary to every police procedural TV show is a lot like just fabricating data. With the amount of post processing and AI a cell phone camera does these days you could argue everything they pump out is doctored and fake by default because it kind of is. And most video is stored with lossy algorithms even without the post processing.
If any evidence was automatically disqualified on the basis that it merely could be fake, there could never be any successful prosecution.
The defense is still welcome, of course, to make an argument and present evidence that any video or other evidence provided by the prosecution is fake.
From the federal rules of evidence:
> (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
https://www.rulesofevidence.org/article-ix/rule-901/
Specific to recordings
> An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
https://www.rulesofevidence.org/article-x/rule-1002/
Unfortunately, the rules of evidence are pretty vague about what is actually required to prove that a video is admitable as evidence; but the burden to do so is absolutely on the party introducing it.
At that point the reliability of the evidence may of course be called into question, as with any evidence or witness. The question mark would be whether it was convincing.
If you have that (absent other possible evidentuary concerns), it is up to the trier of fact (e.g. jury) to determine if how much they believe the evidence.
The problem here is the prosecution cannot meet even that low bar, and instead is relying on the various exceptions to the requirement.
Rule 902 lists evidence that is "self authenticating", and videos are not on it.
As such, the question of deep-fakes should be relatively irrelevant to (criminal) courts. If a witness claims that a particular video was filmed on a particular day in a particular way, that is as much evidence as you need. Whether that witness is lying remains to be proven during the course of the trial.
Things may be different in civil court, where the standards for evidence are more lax I believe.
Prosecution has a freer reign during deposition and can play a video from Youtube[1] and ask the subject of the video if they were at the location at a specific date and time, and if the words are their own.
1. With the courts permission.
For example, lets say someone accused of a violent crime and the prosecutor wants it upgraded to a hate crime. Now lets the accused did not post a life of hate on facebook. But instead there are just a few audio recordings of the accused saying "I hate X people, I want to kill them all" brought to the court by someone else and not found in the accused possession.
As time progresses it will likely become more difficult to prove that the audio is real. Deepfakes of audio are convincingly good these days. Soon the recordings of politicians saying terrible things will be met with a default reply of "it's a deepfake", and it's likely a bunch of them will be.
Future is going to be messy, yo.
There should be higher degree of burden on the defense than claiming "fake news" and waving your hand.
The judge is very much for the prosecution deposing Musk to ask him - under oath - if he can corroborate or dispute what's in the video. The defense was asking the videos to be thrown out entirely because they could be fake.
Substantiating your evidence has to happen via a pretty specific process, and there is an entire process for entering stuff into evidence with rules regarding chain of custody, validation, etc.
When it comes to evidence, it's not a specific claim against anyone, it's an item that is being introduced to support a claim. That should be validated and checked before it even gets to the court room. If either counsel believes it to be fraudulent, they need to review it and make the claim.
From the article, this was not really the case; instead, a video of a conference with many attendees and participants showed Musk making the claim in question.[0] Tesla's (or Musk's? Not sure) lawyers made a very weak statement:
"[Musk], like many public figures, is the subject of many ‘deepfake’ videos and audio recordings that purport to show him saying and doing things he never actually said or did,” Tesla said"
This is not really an argument towards anything about the video; it doesn't outright say it's a deepfake (likely because it's not), it doesn't provide any evidence to a claim that the video in question is a deepfake, it does nothing to establish who would have produced this deepfake, it doesn't question the YouTube channel owners, Recode, on if they are ready to stand by their statement, etc.
In this instance, the lawyers defending Tesla/Musk are trying to muddy the waters; they aren't bold enough to say Recode made a deepfake, they aren't trying hard to position that the video _is_ a deepfake, they're just trying to sow doubt into the minds of the court about whether to consider normal evidence like recordings or screenshots as valid given that Musk is a public figure. (not sure if there's a jury, but if there is, they want to confuse the jury also)
The judge was right in my opinion to slap the defense counsel on this, as it's transparent and pithy. It was a bad-faith statement to make for a legal team in my opinion as they weren't trying to _say it was a fake_, they just wanted to sow doubt without any proof.
It's even a bit hopeful in my opinion as to me it says the court is holding Musk and the businesses he associates with accountable for Musk's actions and statements; Musk has tried this before when he "joked" about buying Twitter and the courts didn't take on any of the arguments they put up. As I see it, it's another instance of Musk and counsel representing his interests trying desperately to escape culpability.
0 - https://www.youtube.com/watch?v=wsixsRI-Sz4&t=4765s
Edit: Wrong link on first version. I was trying to see if any other channels had coverage of the Code Conference 2016, but looks like it's just Recode.
For an old email, it would be up to the opposing counsel to argue that the person who made it made it for the purpose of fabricating evidence however many years ago.
How believable the emails are will vary. Do you still have the headers? Is there a valid DKIM signature in those headers? Can you bring the people CCed on the email as witnesses? etc.
however the courts have been lack of late allowing police to download social media and YT videos and attest that "the video is a true and accurate representation of what I saw on social media post" because they often can not find, or can not secure the person that actually took the video (or the video was taken by the defendant who can not be made to testify against themselves)
It is very dangerous when we start lessing the requirements for foundation in the law, and the courts have been doing that on many fronts when it comes to "forensic science" (see bite mark evidence as another example of this)
From a linked article from the one posted here, https://www.theguardian.com/technology/2023/apr/27/elon-musk... :
> The attorneys for Huang’s family sought to depose Musk regarding recorded statements from 2016 in which he allegedly said: “A Model S and Model X, at this point, can drive autonomously with greater safety than a person. Right now.”
> Tesla, however, opposed the request in court filings, arguing that Musk, the Tesla CEO, cannot recall details about the statement and questioning the authenticity of the recording.
The judge's ruling here is "ok then if you want me to think it's fake, tell me that under oath."
It's doubtful Musk would be willing to claim this one was fake - there are a lot of witnesses that could be dug up. He could do the weaker "I don't remember" song and dance, but he's trying to just avoid the issue entirely.
Which seems quite reasonable to me. Tbh, reading the initial article, I almost imagine Musk discussing his case with his lawyers, and saying something off the cuft like "can't we just argue that this was a deep-fake", and forcing them to run with it.
Also, how good was deep faking in 2016? The video has been around since then. Is Musk's argument that this was a long con to sue Tesla seven years later?
And then you have the concept that all it would take is alternate footage of same statement, B-roll, etc., to add to the "what, were all these deep fakes, too?"
Or the Internet Archive?
At some point you recognize that "reasonable doubt" doesn't mean "insurmountable evidence to disprove even the worse conspiracy theorist/asshole wrong".
Except it's on YouTube, not a website under their control, which means you now need to argue - with convincing evidence - that YouTube is in on a conspiracy to defraud the court to get at Musk.
How do you propose to prove if he actually remembers or not?
> It's doubtful Musk would be willing to claim this one was fake - there are a lot of witnesses that could be dug up.
But then the prosecution doesn't need the video because they would have all of these witness, so why should it be admissible if it can't be authenticated?
He doesn't have to remember it for it to be good evidence. If he wants to say "I don't think I would've said that", go for it.
> But then the prosecution doesn't need the video because they would have all of these witness, so why should it be admissible if it can't be authenticated?
The video is perfectly good evidence (and its age and provenance make it pretty reputable). If the defense contests its veracity, that's when you start going to witnesses.
He doesn't have to remember it for it to be bad evidence either.
> If he wants to say "I don't think I would've said that", go for it.
But then what are you trying to hold him to? A subjective opinion?
> The video is perfectly good evidence (and its age and provenance make it pretty reputable). If the defense contests its veracity, that's when you start going to witnesses.
The defense will always contest its veracity if the burden is on the prosecution to prove it and they haven't. The point is that they should have to prove it.
Sometimes they'll be able to.
He needs to make a claim about the evidence in question if he thinks it's fake. (He doesn't. He knows it's a genuine video.) Again, a vague assertion that "sometimes people make deepfakes about me" doesn't cut it.
> The defense will always contest its veracity if the burden is on the prosecution to prove it and they haven't.
The defense is highly unlikely to make the claim that a seven year old video on a prominent channel with top industry reporters didn't happen. Plenty of pieces of evidence get entered into the court's records without being contested.
Why? What if he thinks it could be fake, and doesn't know? Why should that reduce the other party's burden?
> The defense is highly unlikely to make the claim that a seven year old video on a prominent channel with top industry reporters didn't happen.
But it's not the defense claiming that it didn't happen, it's the plaintiff claiming that it did. They should have to prove their claims.
And sometimes they'll be able to.
> Plenty of pieces of evidence get entered into the court's records without being contested.
They don't get contested when the defense doesn't want to aggravate the judge by demanding proof of something they know the other party has, even if they have a right to. That's a different question than whether the other party should have the burden of proof in the cases where they might not be able to meet it.
He will be asked to justify that belief, and that justification will be weighed against the provenance of the video. That he's not saying that is telling; claiming the video is faked would likely hurt his credibility given the number of times he's provably made statements of this kind.
> They should have to prove their claims.
They have submitted it as evidence. The jury weighs if it's credible. If Musk chooses not to rebut/contest it, that's on him, not the plaintiff.
Why? His lawyers could provide the same justification: Convincing deepfakes are easily produced at low cost by adversarial plaintiffs and internet trolls.
> That he's not saying that is telling
People are imperfect and if you misspeak under oath there are consequences. Testifying at all subjects you to cross-examination, which is time consuming and subjects you to lawyer tricks by the other party. Not wanting to do it is the default.
> They have submitted it as evidence. The jury weighs if it's credible.
First the judge decides if it's even admissible. There are some forms of evidence so weak that they only serve to prejudice the jury, and unauthenticated video is pretty much there now.
Demanding that the introducing party authenticate it should be table stakes at this point.
Cool. Video evidence, written evidence, witness testimony, and essentially everything else is now off the table. Congratulations; you've gotten rid of the entire trial court system.
> Testifying at all subjects you to cross-examination, which is time consuming and subjects you to lawyer tricks by the other party. Not wanting to do it is the default.
Yes. If you aren't willing to argue against a piece of evidence in a convincing fashion, you have to live with that decision. The jury gets to draw inference from "huh, they didn't say anything in response to that..."
> Demanding that the introducing party authenticate it should be table stakes at this point.
They'll introduce it with someone describing it something like this:
"This is a seven year old video hosted publicly on YouTube, on the channel of a long-standing reputable organization, of a live event hosted by well-known reporters, which received contemporary news coverage. The claims in the video made by Musk are of a similar nature to others he has demonstrably made."
That's sufficient. Musk's lawyers are free to object, if they've got a good argument against all of that. They're also welcome to try and convince the jury that Musk never made the claims. I suspect the plaintiffs will be able to find plenty of corroborating evidence should it come to that.
You're going to create a deepfake of witness testimony in front of a live jury? How does that work?
And it's not that you can't submit a video, it's that if you want to, you should have to go find the person who took the video and have them testify that what it shows is what actually happened. And have them be identified, so their credibility can be called into question, e.g. if it turns out they're a long-time antagonist of the defendant.
> Yes. If you aren't willing to argue against a piece of evidence in a convincing fashion, you have to live with that decision. The jury gets to draw inference from "huh, they didn't say anything in response to that..."
But they did have something to say in response to that: Deepfakes are cheap and easy to create. That's a general argument, not a claim about the facts of the case, so it doesn't require testimony to substantiate.
> "This is a seven year old video hosted publicly on YouTube, on the channel of a long-standing reputable organization, of a live event hosted by well-known reporters, which received contemporary news coverage. The claims in the video made by Musk are of a similar nature to others he has demonstrably made."
None of which proves that the video is real. At best it's evidence that it's a possible fake which is seven years old and was published by an established organization.
What they could do is find the reporter who did the interview and bring them in to testify that what the video depicts is what actually happened, if they have a better memory of it than Musk. Which they may very well be able to do. But the point is that they should have to.
Witness testimony is trivially fabricated. It happens all the time in court. The solution is to rebut it, not ban it.
> But they did have something to say in response to that: Deepfakes are cheap and easy to create.
That's not a reasonable response, any more than "I saw him shoot the person" can't be rebutted with a vague, hand-wavy "well sometimes people lie" by itself.
> None of which proves that the video is real. At best it's evidence that it's a possible fake which is seven years old and was published by an established organization.
I don't think you're arguing in good faith.
Witness testimony is under oath. You can lie, but then you can go to jail. And you can be cross-examined, unlike a video. The risk of punishment reduces the incentive to lie and the interactivity increases the potential for it to be discovered.
Witnesses also have varying credibility. If the witness is the plaintiff, they have an obvious incentive to lie and juries know that. Whereas a video from an unauthenticated source is no more credible but fosters the intuition that you're seeing something with your own eyes.
> I don't think you're arguing in good faith.
I think I am.
I think we can agree that a random video from a random YouTube channel has no credibility. But if you're going to stake the value of your evidence on the credibility of the source, you should at least have to establish that it can actually be authenticated by one of these credible parties and not just e.g. some syndicated clip that got published on their channel.
Which, once again, you may be able to do. But you should still have the burden of actually doing it.
if all elmu has to say in response is "well maybe it's a deepfake, but I won't say if I think it is", obviously any jury would be hard pressed to suppress their pressing giggles before rejecting such a weak excuse
There's not a "prosecution." Did you read the article I linked? This is a civil lawsuit (which also means a different level of evidence required, ultimately) still in fairly early stages. The trial hasn't even started. "Judge Evette Pennypacker tentatively ordered a limited, three-hour deposition where Musk could be asked whether he actually made the statements on the recordings" - there's no ruling of fact yet about if the video is real, the Judge is just saying "this looks like a bullshit excuse to avoid having to talk about your past comments."
The plaintiff is trying to get Musk to give a deposition regarding his claims about self-driving. Musk is trying to not even have to give that testimony. This is exactly that "we need to figure out if this evidence is real or not" process that you say is needed! Musk is just trying to throw that out and say "nah we don't even need it, it could be fake, ya know." The judge seems to think that a 6+ year old video from a fairly well-known publication carries enough weight compared to a lazy "IDK, sometimes people deep fake me" statement to be worth asking Musk further questions. That seems reasonable to me.
> How do you propose to prove if he actually remembers or not?
Obviously that's impossible, but it's also irrelevant. If he says he doesn't remember, but you have a video with an uploaded-to-Youtube-timestamp from 2016, and contemporary coverage, then you say "well, since you don't remember for sure, we're gonna go with all the evidence that suggests you did say this."
It's really hard to predict where the technology is headed with regards to both generating and proving the non-authenticity of deepfakes, but it is concerning that this could open up people without money to pay for defense to be ruined by people with money to pay for deepfakes.
The defense's first step is to say "that particular video is a deep fake", under penalty of perjury.
Musk's "well it could be" doesn't cut it.
It's also not clear if experts always can tell if something is a fake or not, if it was created by an algorithm which is less than a year old or doesn't happen to have a lot of the artifacts that these algorithms sometimes introduce.
The courts will have to deal with it one way or another, and right now expert witnesses is the tool they have, and the tool defendants will need to use.
Why not?
If you go into court claiming you have a contract with someone but you have nothing notarized or even signed, you're the one who has to provide evidence of your claim. A video is no longer sufficient to do that because any plaintiff or internet troll now has the ability to convincingly fabricate one. It's no more proof of anything than the plaintiff making an unsubstantiated claim.
> The courts will have to deal with it one way or another, and right now expert witnesses is the tool they have, and the tool defendants will need to use.
Why should it be the defendants who have to pay for the expert instead of the plaintiffs?
> Why should it be the defendants who have to pay for the expert instead of the plaintiffs?
TL;DR: that's how our legal system works in the US, for better or worse.
EDIT: You probably don't have to attack the video as a deepfake directly, either. "That's not me, I wasn't at X, I was at Y, and here are receipts and witnesses" are highly likely to work too. Basically, an alibi.
Suppose the video isn't of an old statement made by the defendant which they don't remember making, it's a video of one of their products catching fire sourced from an anonymous YouTube account. They have no way to know if that video is fake or not, so on what basis could they claim to know for sure that it is?
But because it could very plausibly be fake, they should be able to demand proof that it isn't from the party trying to introduce it as evidence. For example, by having it authenticated by the person who created it, whose credibility could then be questioned etc.
> "That's not me, I wasn't at X, I was at Y, and here are receipts and witnesses" are highly likely to work too. Basically, an alibi.
An alibi is the defense proving that they couldn't have done it. The burden of proof is supposed to be on the plaintiff. Creating deepfakes is so easy that a plaintiff in possession of one by itself proves nothing.
As for the rest - you'll have more luck discussing the specifics with your lawyer at this point. Good luck and I hope you find what you need.
I’m not a lawyer, but don’t courts have a way of weighting the trustworthiness of a piece of evidence?
In Mr. Musks case, there are many witnesses who observed him making the statements that are shown in the video.
It's no more "guilty until proven innocent" than a signed confession means you're guilty unless you prove it fake; that's the whole point of a trial.0
For a Jury i think it would come down to how convincingly the defense argued that the video is a deepfake. Just saying the words "it's a deepfake" hypothetically wouldn't/shouldn't be enough to convince a "reasonable person" to believe all video evidence is now fake without concrete evidence (if any is even possible) from the prosecution.
Disclaimer: I'm quite unfamiliar with the nuance of the legal system. But i keep using the words "reasonable person" because this was hammered into us in the Jury. We were given a small book of legal definitions related to the criminal case and just about every page framed each definition around a "reasonable person". This seemed to be how the state defined any nuance between the English language and strict logic.
This would, i imagine, help mitigate a hypothetical defense of "all evidence is faked" or w/e.
So it’s entirely possible for a ton of evidence to come in that none of it meets what you’d consider the “no reasonable doubt” standard and for a jury to consider all that suspicious evidence to be true enough that they can convict someone under the “no reasonable doubt” standard.
I think you're thinking of reasonable doubt?
For additional context, the criminal case i was part of the Jury for was handed a book of definitions for the given case. Things like Assault had qualifiers of Self Defense and Stand Your Ground. Each of these little nuance-y definitions included very implicit definitions of say, the force you use in response to assault for self defense or stand your ground. This responsive force was instructed to be judged against something like "Force that a reasonable person would not believe to be in excess based on the attack".
Ie "reasonable" was only able to be decided by a hypothetical "reasonable person". Whether something is reasonable or not was only applicable in the context of the person who is deciding if it's reasonable, also themselves being a reasonable person.
Just about every definition page had an explanation quite similar to this. I think due to the fact that human definitions are very difficult to define. Did you hit them too hard? Well we don't have pounds per square inch of your delivery, or w/e concrete definition could use, so the legal definitions were bounded by this hypothetical "reasonable person".
It was interesting.
edit: I should add, in case it's not clear, that we the Jury were instructed by the judge on the legal definitions. That was the book. We were to view the case through the lens of these legal definitions with the evidence presented. What specifically we were deciding was very important and meticulously managed by the Judge.
The "reasonable doubt" comes into play on the facts.
(The system actually works pretty well, and has been developed over long periods of time.)
Arguing that a video randomly was deepfaked would go a lot further if you could show other evidence that such was happening.
The fact that something is presented as evidence doesn’t mandate the jury to accept the evidence as dispositive.
It means the same thing that's always been true remains true. If a prosecutor (or one side in a civil case) presents fake evidence that is convincing to the court, the other side will have to prove the evidence to have been faked. Adding machine learning to the equation and calling the fakes "deep" doesn't change that basic reality.
Consider everyone who has ever had drugs/weapons planted on them by the cops. As a society we assume most of the people claiming it happened are lying, but some of them are telling the truth and some of that subset actually manage to prove it (usually because the cops managed to record themselves doing it). If the authority figures trusted by the courts intentionally present false evidence then you are stuck not having to prove your innocence but having to prove the evidence to be false or at least untrustworthy.