So is the problem that fake porn is being created, or the ease in which it can be created?
The latter almost makes it sound like fake celebrity porn is more of an art form that should be appreciated and guarded from cheap knock offs.
The latter almost makes it sound like fake celebrity porn is more of an art form that should be appreciated and guarded from cheap knock offs.
> The latter almost makes it sound like fake celebrity porn is more of an art form that should be appreciated and guarded from cheap knock offs.
Cheap, high-quality forgeries are still forgeries. Yes, forged currency did become an item more mentioned in the news when inkjet printers came into common use. This doesn't mean the old-school forgeries were "works of art worthy of appreciation and protection", or were ignored by the local news media when pertinent to the location they reported on.
This is where I'm stuck, I don't really know where I land on whether its a problem we need solved or just a fact of how some people will use new tech. I wouldn't want someone posting fake nudes (or any photos for that matter) of me online, but I'm not sure if I have a right to stop them.
Most aren't free speech absolutists, though I would hope that most would take issue with the idea of further limiting free speech based on new technologies that we don't have direct control over. Are there certain things I can write in a book but not write online? Or things I can write on my own site but not post to Twitter? I had no say in Twitter's creation, how does it have an impact on my personal freedoms?
Edit: in addition - if I take issue with the current legal limit for free speech, can I simply develop a new form of distribution and claim that we now need to further limit free speech in response? That feels like a dangerous backdoor to attack constitutional rights without going through the courts or congress.
Twitter has mass play. It's effectively a worldwide public forum. There should be limits to what speech occurs on it, if only to keep the signal-to-noise ratio down so that genuinely important speech is less drowned out.
> I wouldn't want someone posting fake nudes (or any photos for that matter) of me online, but I'm not sure if I have a right to stop them.
It depends on where you live what the law allows.
> though I would hope that most would take issue with the idea of further limiting free speech based on new technologies that we don't have direct control over
People have been asking for limits on public posting of even non-fake "revenge" porn for years.
Edit:
> can I simply develop a new form of distribution and claim that we now need to further limit free speech in response? That feels like a dangerous backdoor to attack constitutional rights without going through the courts or congress.
You can claim this while only positing a new form of distribution. Talking about policies and the limits of freedoms is one of the fundamental freedoms necessary to a well functioning democracy or republic. It's no attack, as the speech does not create law, or even policy, only the courts or congress or duly appointed regulators (pre-Chevron overturning[1]) can do that.
[1] - https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
This stipulation would be a problem. For one thing we need to be able to distinguish what is genuinely important speech. For another, we would need some kind of check to prevent someone from tipping the scales by flooding the system with speech that technically meets that bar to tip the scales away from less important speech that would have otherwise been protected. Effectively, this makes free speech a sliding scale based on how much "genuinely important speech" others are sharing.
This isn't a backdoor to attack your constitutional rights. Not even close.
If you want to fight for free speech there's plenty of other actually useful battles.
I'm serious. Just once, I'd love a free speech absolutist in these situations to talk about all the work they are doing to prevent retaliatory arrest or expand the speech rights of students or try to get Thomas (who wants to overturn Tinker) or Alito (who voted by himself in Snyder v Phelps) kicked off the bench.
I suspect not everyone agrees with that. Are you willing to trade away some of the things you think should be permitted but they don't for the ban?
Least harm.
> And do you really want to make everything unethical illegal?
By definition, YES! Or at least actionable civil torts.
https://www.dictionary.com/browse/unethical
: lacking moral principles; unwilling to adhere to proper rules of conduct.
: not in accord with the standards of a profession
When you mentioned "ethics" as opposed to "morality" I naively assumed interhuman behaviors such as business ethics and the like.
So yes, I believe that anything that can harm a fellow human (and many things that can harm other life) should be civilly actionable. We can argue about some of the edge cases, but non-consensual deepfake porn is not one of those edge cases to me.
What about drag shows where they impersonate a famous figure and do a sexually suggestive performance? How much protection should the “likeness” of ultra-wealthy superstars get?
And what about unflattering but non-pornographic impersonation?
This article has a good discussion on the lookalike topic of which I'm excerpting some: https://www.publicethics.org/post/the-ethics-of-deepfake-por...
: Suppose I have an indistinguishable look-alike named ‘Danny’ in the pornography business. Danny’s videos are not deepfakes and do not depict me, but people who watch Danny’s videos mistakenly think they depict me. Consequently, the videos affect me in the ways just mentioned.
: I suspect that the most fundamental morally relevant difference between distributing deepfake pornography of me and distributing Danny’s pornography is that the deepfake pornography depicts me while Danny’s pornography, despite appearances, does not.
: Now, if you use that picture to make a deepfake, then that deepfake depicts me, because it’s based on an image that depicts me.
: Just as it would be wrong for someone to nonconsensually distribute a stick figure illustration of me having sex to students in my classroom, so it’s wrong for someone to nonconsensually distribute deepfake pornography of me on the internet.
What merits social good, and who decides it? For example, if I go to a train station and tell people horses have purple hair, is that not free speech? I wouldn't consider that ridiculous statement a social good, it really serves no value and doesn't better society. Am I breaking a law or ethical standard if I do this?
How do you propose we define likeness here? Sure if its shared and claims to be of a named celebrity that must meet the bar, but how much alike the original person must it look like to become unethical?
If a person finds a celebrity attractive and bases a fictitious character on them, is that a problem? What if the haircut is the same, or the eyes and nose are similar? If it goes to court, how personal can the defendant get to show discrepancies between the fake porn and the actual person?
Don't get me wrong I really wish people wouldn't use tech for this kind of stupid shit. I just don't think we will ever be able to draw clear and predictable lines around what does and does not break the law.
In my experience with jury cases the jury is given as little room to interpret law as possible. In this example prosecutors would say "here is what 'likeness' means" and that would be that. Jurors would be expected and instructed to use that definition when determining if the defendant broke the law.
To say that its expected and even a good thing for our elected officials to pass ambiguous laws and our unelected courts to determine what that should mean with little to no input from the public is very confusing IMO. The government is there to work for us, not to define rules and enforce punishment in ways that are completely outside our democratic process of elections and representation.
As long as you can tell beforehand whether you're getting close to breaking the law this is fine. The closer you get to possibly breaking the law the more exculpatory evidence you should be collecting to present to a court.
> To say that its expected and even a good thing for our elected officials to pass ambiguous laws and our unelected courts to determine what that should mean with little to no input from the public is very confusing IMO. The government is there to work for us, not to define rules and enforce punishment in ways that are completely outside our democratic process of elections and representation.
Sure. So what's your alternative? No laws at all? Only laws that can be precisely defined in a completely non-ambiguous manner (good luck with that [1])? I favor making sure that people know about jury nullification prior to becoming jurors. And also favor elected courts (which exist in many jurisdictions).
[1] - I argued elsewhere that even the Constitutional requirement that the President by 35 years old or older is highly ambiguous (as per how the length of a year is defined, leap years, sidereal years, age at running for office, election to office, or assumption of office, etcetera), but hasn't been adjudicated because we haven't had any edge cases. Genuinely non-ambiguous laws don't exist, because every term can be argued over.
It's really hard for me to see the utility in going after THIS vs. letting people say garbage like "If I see a black man flying a plane I'm going to worry." with near complete impunity.
Edit: And I don't think we should necessarily spend resources to go after the latter either, I'm just saying, as a black man, if I had to pick...yeah.
I'm suggesting asking black women which one they'd prioritize. Deepfake porn impacts women a whole lot more than it impacts men. Just as racist assumptions of violence or danger impacts men a whole lot more than it impacts women.
Edit to add: If something prevents or inhibits someone from engaging in the public sphere to the extent of cutting back on their employment and employment opportunities, or their consumption and consumption opportunities, for instance, then there is also a cost in not policing that something.
https://arstechnica.com/tech-policy/2024/01/sharing-deepfake...
: the “Preventing Deepfakes of Intimate Images Act,” which seeks to "prohibit the non-consensual disclosure of digitally altered intimate images." Under the proposed law, anyone sharing deepfake pornography without an individual's consent risks damages that could go as high as $150,000 and imprisonment of up to 10 years if sharing the images facilitates violence or impacts the proceedings of a government agency.
In the first case one has to make a judgement call on whether they personally perceive something as obscene, and whether that means the other party was at fault for creating it. In the case of intimate, you have to define the word clearly and draw a line between what would and would not be considered intimate.
For example, if a fake porn image was made to include a scene of the act happening in a large gathering or public place, does that dodge the word "intimate"? And can the viewer of the image decide whether it is intimate, or would that distinction depend on the feelings of the image's subject at the time it was taken? If the latter, how can that exist when the image was entirely generated and had no living subjects to question?
https://www.congress.gov/bill/118th-congress/house-bill/3106...
“(a) Definitions.—In this section:
“(1) CONSENT.—The term ‘consent’ has the meaning given such term in section 1309.
“(2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.
“(3) DIGITAL DEPICTION.—The term ‘digital depiction’ means a realistic visual depiction, as that term is defined in section 2256(5) of title 18, United States Code, of an individual that has been created or altered using digital manipulation.
“(4) DISCLOSE.—The term ‘disclose’ has the meaning given such term in section 1309.
“(5) INTIMATE DIGITAL DEPICTION.—The term ‘intimate digital depiction’ means a digital depiction of an individual that has been created or altered using digital manipulation and that depicts—
“(A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;
“(B) the display or transfer of bodily sexual fluids—
“(i) onto any part of the body of an identifiable individual; or
“(ii) from the body of an identifiable individual; or
“(C) an identifiable individual engaging in sexually explicit conduct.
“(6) SEXUALLY EXPLICIT CONDUCT.—The term ‘sexually explicit conduct’ has the meaning given the term in subparagraphs (A) and (B) of section 2256(2) of title 18, United States Code.
"And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. If I see someone rob a convenience store and believed the person to look like Al Pacino, does that make the person identifiable? What if I actually thought it was him, not just that it looked like him?
In the case of fake porn, the creator can't know if one viewing it will think the person was modeled after Taylor Swift or if their intent was to actually create porn that would be identified by viewers as Swift.
Is this morally and ethically a problem? Absolutely, in my opinion. But can this be codified into law that is clear enough to make sure you don't break the law? Absolutely not, as long as the law depends on whether a viewer believes the fake porn looks like Swift or is Swift.
A person can't be reasonably expected to stay on the right side of a law that is defined by how someone will judge the creation later. Obviously its entirely different if the creator attempts to pass it off as the original person, in this case if someone created or distributed fake porn and claimed it actually was Swift.
Sure, that's what a jury and/or judge is for. The defendant has a lot of potential defenses against a civil claim. The criminal portion of the law is tighter:
: “(a) Offense.—Whoever, in or affecting interstate or foreign commerce, discloses or threatens to disclose an intimate digital depiction—
:: “(1) with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or
:: “(2) with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual,
The legal definition of "reckless": https://www.law.cornell.edu/wex/reckless_disregard
: reckless action is distinguished from negligent action in that the actor consciously disregards a substantial and unjustified risk, as opposed to merely being unreasonable. For example, in State v. Olson, a 1990 South Dakota Supreme Court decision, the court did not find a tractor driver who turned left at 5-15 mph and hit another car reckless because the prosecution could not prove that he was aware that there was an oncoming car.
Ultimately it is left to judges to interpret law. Meaning that if laws are passed with ambiguous definitions unelected judges get to decide how they think the blanks should be filled in. Our elected officials can then, if they choose, pass laws with the intent of leaving them ambiguous to allow unelected judges to effectively write laws completely unbeholden to the very voters that they are meant to serve.
In the US jury nullification is also a right. If the jury thinks that the law is too draconian for the facts of the case they can vote to acquit.
> This isn't a backdoor to attack your constitutional rights. Not even close.
I'd be really curious to hear more here. My specific question and proposed backdoor was specifically in response to the idea that free speech may somehow be limited based on a measure of how easily current technology allows said speech to be distributed. What did I miss there and how is it not a backdoor?
These rights were enumerated in a time when people distributed pamphlets that led to a bloody revolutionary war. War is a hell of a lot worse for the social fabric than “some fake nudes got distributed on the Internet”.
It's the volume of it, which comes from the ease.
It sure read to me as though the issue was with the ease of which fake porn can be created and distributed, not the porn itself. I wouldn't agree with that at all and wanted to make sure I understood them right before arguing against something I simply misread or misunderstood.
Here's a strawman example: AI child porn would probably be better for the world, because there would be no/far lower demand to actually abuse children, all else being equal (i.e., AI child porn still being illegal).
The old stuff Human created fakes have always drawn criticism but the amount and distribution was so limited that it was easy for people not directly affected to ignore or not know about it.
Now the new Generated stuff is to prevalent and easy to produce it's too hard to ignore.
It’s almost like the problem is nobody claiming it as art they created.
> Is creating fake images of someone nude in a somewhat sexual context meaningfully different from creating images of them actively engaging in sex acts?
Yes.