PHOENIX — Just in time for campaign season: another new state law designed to help voters figure out which images they’re seeing are real and which aren’t.
Gov. Katie Hobbs has signed legislation requiring that anything purporting to be shown to a candidate within 60 days of an election have a “clear and conspicuous disclosure” of whether it is instead a “deepfake.” But it is still unclear whether the measure, SB 1359, is constitutional.
The move comes a week after Hobbs signed into law HB 2394 designed to protect candidates.
That bill, authored by Rep. Alexander Kolodin, R-Scottsdale, allows those running for public office to go to court to obtain a judicial declaration that the person in the image, video or audio is not It’s them. But in that case, there is no penalty and a court cannot order the material to be removed from the web or the airwaves.
People are also reading…
Both measures are responses to artificial intelligence and the use of computers to create an image, video or recording of another person without their knowledge or consent, and to put words in their mouth.
“Let’s say he wanted to fake President (Quang) Nguyen,” Sen. Frank Carroll told the House Judiciary Committee, which Nguyen, a Republican from Prescott Valley, chairs.
He said the technology would be able to find various images and voice samples of Nguyen “because we are all tied to the Internet,” through everything from cellphones to social media.
“So I can produce something that looks like President Nguyen, except I can have him do something unusual or untrue about him,” said Carroll, a Republican from Sun City West. “I can make him the most evil person in the world if I describe him that way. But he’s not really the one who does it.”
His SB 1359 signed by Hobbs goes a step further than what Kolodin signed into law.
States that anyone who distributes a “synthetic media message” that they know is a “deceptive and fraudulent forgery” of a candidate on the ballot in the next 90 days must also provide a “clear and visible disclosure” that it was generated using intelligence artificial.
Additionally, it defines “misleading and fraudulent” as something that the producer knows is false with the intent to harm the candidate’s reputation and is “intentionally calculated to mislead a reasonable person to conclude that a real individual said or did something that “he didn’t say or actually do.”
Marilyn Rodriguez, a lobbyist for the American Civil Liberties Union of Arizona, told lawmakers she understands the concerns of those pushing for new state laws.
However, “we do not believe that it will be constitutionally approved in the courts,” Rodríguez said.
The key, he said, is that the U.S. Supreme Court has ruled that speech – even false speech – is protected by the First Amendment. The fact that this “speech” is produced through technology, Rodríguez argued, is legally irrelevant.
“As a general matter, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” he said.
“Speech cannot be censored simply because it is misleading,” Rodriguez said. “The fact that a recording or deepfake represents something that is not true does not take away its First Amendment protections.”
He said there are constitutionally permitted restrictions on that type of expression. But Rodriguez said it has to be within the parameters of situations like harassment, fraud, extortion or “true threats.”
Regarding election issues, he said the courts have allowed some government regulations.
But here too, Rodriguez said, there has to be some “compelling government interest,” such as preventing messages that mislead people about voting requirements and procedures and actions designed to disenfranchise voters. Even then, he said, such restrictions take effect only when there is an intentional misrepresentation of voter information, and not about the candidates or their positions.
Kolodin, however, said those arguments miss the point.
“False speech is absolutely protected by the First Amendment,” he said. But the issue, Kolodin said, is not whether a statement is false but the fact that someone is being impersonated.
“It’s like you signed my name on a loan document,” he said. “That’s what we’re trying to address and prevent.”
“That’s a problem,” Rodriguez admitted, but said guardrails are needed.
For example, Rodríguez noted, there is already a state law against criminal impersonation. But he pointed out that it requires proving that it was done with the intent to defraud.
In fact, Rodriguez said the ACLU supports SB 1078, another measure still making its way through the legislative process. That proposal from Sen. John Kavanagh, R-Fountain Hills, builds on that existing law and adds that it would also apply to the use of a recording of another person’s voice, image or computer-generated video “with the intent to defraud others.” or with the intent to harass other people.”
Rep. Justin Heap, R-Mesa, acknowledged there is a 2002 U.S. Supreme Court case that protects false speech. But he questioned whether the current judges would reach the same conclusion.
“We have a completely new technology,” Heap said. “This is a video of someone with her voice speaking, saying something he didn’t say. To me, it seems like this creates a completely different dynamic.”
And at the very least, Heap said, a law like this would provide a basis for the Supreme Court to review its precedent.
“I actually hope this is challenged because I think we need the court to give us some guidance on this and some new things,” he said.
Don’t expect to start seeing disclosure requirements right away. The law Hobbs signed won’t go into effect until at least early September, well after the state’s July 30 primary election.
The other question is how effective the law will be in ensuring disclosure.
Carroll’s measure originally proposed a criminal penalty. But that was eliminated and replaced with a fine of $10 a day for the first 15 days and $25 a day after that.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, and Threads at @azcapmedia or email azcapmedia@gmail.com.
‘); var s = document.createElement(‘script’); s.setAttribute(‘src’, ‘https://assets.revcontent.com/master/delivery.js’); document.body.appendChild(s); window.removeEventListener(‘scroll’, throttledRevContent); __tnt.log(‘Load review content’); } } }, 100); window.addEventListener(‘scroll’, throttledRevContent); }
Be the first to know it
Get local news delivered to your inbox!
Keynote USA
For the Latest Local News, Follow Keynote USA Local on Twitter.