We asked legal experts how image fraud, synthetic media - or the threat of image deception (Liar’s Dividend) will influence legal proceedings, CDA 230, or legislative considerations:
 

“We are at a particularly perilous moment in the development of deepfakes. As we hold our breath in fear of the deepfake showing soldiers brutalizing civilians and other fakery that risks steps to war, we are awash in deepfake sex videos that are ruining women’s lives in the here and now. And sites devoted to deepfake sex videos are free to earn advertising profits and subscriber fees with no fear of liability thanks to Section 230. The time is now to reform the free pass secured by Section 230 for such destruction and ensure that sites act as the Good Samaritans that Congress imagined in 1996.”
– Danielle Citron, Jefferson Scholars Foundation Schenck Distinguished Professor of Law, University of Virginia School of Law
 

“As a trial attorney and former federal prosecutor, having a photograph or video was often deemed reliable evidence for court proceedings. But now, given the increasing prevalence of cheapfakes and deepfakes, we need more, and better, information to verify what is real and credible proof. With technological advances, evidentiary standards also need to evolve to provide greater authenticity from the point of collection, and thus greater veracity of evidence used in investigations and litigation. This same rigor also should be incorporated into corporate regulatory compliance programs, as we strive to increase reliability of information and authenticity of users throughout business processes, to combat and reduce fraud and hopefully help avoid litigation.”
– Judith Germano, Founder, Germano Law; Professor/Distinguished Fellow, NYU Center for Cybersecurity
 

The increased use of rudimentary deception techniques in visual imagery and the growth of hyperreal synthetic media raises several significant and developing legal issues.  Whether related to their positive uses for entertainment or accessibility, or their misuse for abuse and deception, image alteration and deception pose evolving questions for attorneys, legislators, and businesses.  Here is an overview of some of these considerations:  

Cheapfakes: Crudely edited, mislabeled, or decontextualized imagery, audios, and videos, commonly called “cheapfakes,” are the most common form of manipulated media online today.  Experience shows that it does not require cutting edge synthetic media generation or alteration to propel false narratives.  The surge of cheapfakes will serve to only deepen the distrust many feel toward all media, leading to a growth in the “liar’s dividend.”  That is the benefit malefactors can draw from being able to dismiss authentic media as fake, because the public will be primed to doubt the veracity of all inconvenient evidence.  These challenges will only grow with the democratization and greater believability of advanced synthetic media.

Deepfakes: The advent of artificial intelligence (AI)-generated synthetic media, “deepfakes,” creates new and controversial challenges that legislators, attorneys, and business must now grapple with, such as:

Ownership: Who owns a deepfake?  It is often an open question.  The source data that is fed into the AI generator to create synthetic images may belong to one or more people, affording the rightsholders copyright claims in the generated media.  Determining when the use of underlying source data to create a deepfake is “fair use” or when the output is sufficiently “transformed” from the source imagery that it is no longer covered by copyright law will vary case-by-case.  In the meantime, businesses that want to use deepfakes for commercial purposes will need to consider the provenance of source data, secure appropriate licenses, and address similar intellectual-property implications of their use. 

Deepfake-Specific Laws: Legislators around the country have moved with notable speed to legislate around deepfakes.  So far, eight states have passed laws that bar deepfakes of some kind.  Congress has passed and the President has signed four laws related to deepfakes. About thirty bills on deepfakes in roughly twelve states and Congress are under consideration. 

Matthew F. Ferraro (@MatthewFFerraro), a former U.S. intelligence officer, is a visiting fellow at the National Security Institute at George Mason University and a counsel at Wilmer Cutler Pickering Hale & Dorr.

The Russian invasion of Ukraine is a tragic and dangerous event that is unfolding on live and on social media.  Informational and visual veracity are becoming increasingly critical as conflict rages throughout the country.  However, soon after the invasion, fraudsters began leveraging conflict to gain followers that are then monetized through advertising partnerships.  Instagram promoted meme pages started to highlight live-streaming from the ground from alleged journalists.  The accounts were not run by Ukrainian journalists however, they were operated by a meme admin in the U.S. who manages a network of viral content.  These profiles are known as ”war pages” on Instagram.

In addition to those seeking to capitalize on the conflict, watchers are closely following the spread of visual disinformation, including the use of AI-generated deepfakes to undermine groundtruth. On March 16, a clearly manipulated - possibly synthetic/deepfake - video of the Ukrainian President circulated on social media, two weeks after Ukraine’s Defense Minister warned that Russian disinformation tactics may include fabricated visuals. Further, at least one fake persona was created using AI-generated synthetic images to spread disinformation and undermine ground truth throughout the internet. However, despite the threat of synthetic media, the majority of misinformation  currently being spread about the war in Ukraine involves “Cheapfakes” shared by social media users videos without proper context. Numerous images and videos that are being posted and shared on social media are from older wars or presented with no context and lack verified information.

It is clear that the gravity and emotions surrounding war will only enhance misinformation velocity, especially if large parts of Ukraine become unpermissive to international media and journalists.  The speed at which social media content is consumed is creating a new kind of “fog of war,” drowning in disinformation. Many social media platforms are designed to keep users on their apps by limiting external links, thus proliferating the spread of misleading information.