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Deepfake revenge porn distribution now a crime in Virginia

92 points by smacktoward 7y ago

sandworm101 7y ago
The real joke is that "deepfake porn" has been common in Hollywood for generations. It was just consensual. Google around to see how many shots in sex and/or nude scenes were actually body doubles. Only lately has that evolved into digitally putting the star's face on the body double's body. 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.
- deleted 7y ago
  [deleted]
- draw_down 7y ago
  Come on.
- moate 7y ago
  >>Hustler Magazine v. Falwell 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?
  - tptacek 7y ago
    Moreover, the entire point of Hustler v Falwell was that no reasonable person could have believed the Hustler piece was anything but satire, while the whole point of a "deep fake" is that the opposite is meant to be true. 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.
    - zaroth 7y ago
      Maybe in the venn diagram of deep fakes and revenge porn, these are not two perfectly overlapping sets, and since first amendment issues have to pass strict scrutiny, the law could still be in Constitutional jeopardy? I Am Definitely Not A Constitutional Lawyer.
    - moate 7y ago
      Or arguing in bad faith because you just think people should always be able to "say" whatever they want whenever they want because slippery slope >> thought police >> being an asshole sends you to jail.
      - whenchamenia 7y ago
        Freedom of speech, should apply reguardless of good faith. Who would you have draw the line?
- TomMckenny 7y ago
  Not to defend the Virginia statute but as devils advocate, couldn't they argue that their law does not apply to parody and only protects non-public figures? So couldn't they argue the statute would not apply to the Hustler-Falwell parody for those two reasons?
  - heyitsguay 7y ago
    Why wouldn't you defend this statute?
    - TomMckenny 7y ago
      I haven't read enough about it to have an opinion yet. Does the wording in fact contradict Hustler Magazine v. Falwell? Would it outlaw satyrical images of politicians? Thus my question above.
- adamlett 7y ago
  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 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.
  - tptacek 7y ago
    Yes; this is basic enough to be in the syllabus for the case: 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.
    - sandworm101 7y ago
      Exactly. So a deepfake of a clean-cut star, say Taylor Swift, in an over-the-top hardcore porn clip would not reasonably be considered real and so could be a legitimate parody. I forgot to mention perhaps the greatest political porn title: "Who's Nailin Palin?" ... the perfect recent embodiment of the Falwell holding.
tick_tock_tick 7y ago
I don't see how this can possible be legal vs the First Amendment.
- moate 7y ago
  The same reason that harassment and slander are crimes. There's always limits to what you can "say" when what you're saying isn't just unpopular but actually damaging.
  - thrwayxyz 7y ago
    Or satire if you put a disclaimer that it's not the person depicted. Would you want a cartoonist arrested for the involuntary porn of painting trump naked with a micro penis?
  - pretendscholar 7y ago
    slander is not a crime
    - chrshawkes 7y ago
      Libel is illegal and in the same category.
      - ThrustVectoring 7y ago
        It's a tort, not a crime. The individual you defamed can sue you in civil court over the damage you do to their reputation, but the US government can't prosecute you for it.
    - ThrustVectoring 7y ago
      It's a civil tort, and you have (limited) first amendment protections against having your first amendment rights limited by government intervention via civil court. See also: https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
  - 7y ago
heyitsguay 7y ago
Very disappointed but very unsurprised to see that the initial HN reaction is "this shouldn't be illegal". Where is your respect for others?
- commandlinefan 7y ago
  Where is your respect for justice?
  - heyitsguay 7y ago
    With the lawmakers making this law who are trying to protect people from injustice.
- TallGuyShort 7y ago
  Any new law has the potential to result in no-knock SWAT team raids and online censorship with minimal judicial oversight when someone violates a technicality in the law and pisses off the wrong person. And despite that many times said laws don't even result in a decrease in the undesirable behavior after all that. It's always worth looking at the potential abuses of a law (especially one that that effectively makes an exception to the 1st Amendment) even though the thing it claims to address is reprehensible. 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?
  - heyitsguay 7y ago
    Nothing you say here is special to this law though, as opposed to any other law that gets passed. If you're of the opinion that no law is a good law, i think we'll have to just disagree. All I'm seeing is justification for inaction on an issue with pretty clear precedents in established law on revenge porn and libel/slander.
mjevans 7y ago
Shouldn't this already be covered by defamation and/or laws related to truth in marketing?
- markdown 7y ago
  > laws related to truth in marketing I'm a regular joe consumer, and as far as I can tell, there are either no such laws, or they are never enforced.
- ThrustVectoring 7y ago
  Yeah, this clearly counts as defamation in my opinion. It'd be difficult to prove damages, though, so it's unlikely to ever come to trial. Adding this as a category of per se defamation so that plaintiffs no longer need to prove economic harm from it seems like the natural solution to me.
apo 7y ago
> The new law amends existing law in the Commonwealth that defines distribution of nudes or sexual imagery without the subject's consent —often called revenge porn —as a Class 1 misdemeanor. The new bill updated the law by adding a category of "falsely created videographic or still image" to the text. 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 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?
- pfisch 7y ago
  > A very talented artist creates a realistic watercolor of the President in a compromising situation with Kim Jong-un and posts to Instagram. 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.
  - solotronics 7y ago
    Why? I thought we had freedom of speech in the US. 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?
jsnider3 7y ago
There's a good chance that this law is unconstitutional, but I doubt anyone wants to be the first to test their luck in court.
LAMike 7y ago
For everyone saying this is a violation of the 1st amendment - 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.
- donatj 7y ago
  I'm not sure if this is a joke or not. 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
  - TomMckenny 7y ago
    >I'm not sure if this is a joke or not. https://en.wikipedia.org/wiki/Poe%27s_law 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.
    - randallsquared 7y ago
      That engine is consistency. It just doesn't apply to actually existing law.
      - TomMckenny 7y ago
        So they will return North America to the Indians? 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.
fouc 7y ago
Deepfake revenge porn could be counter-intuitively good for privacy. If people's real porn images get leaked, they can just claim it was deepfaked. Trying to make a law against this could actually be a massive overreaction.

92 points by smacktoward 7y ago

The real joke is that "deepfake porn" has been common in Hollywood for generations. It was just consensual. Google around to see how many shots in sex and/or nude scenes were actually body doubles. Only lately has that evolved into digitally putting the star's face on the body double's body. 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.

deleted 7y ago
[deleted]
draw_down 7y ago
Come on.
moate 7y ago
>>Hustler Magazine v. Falwell 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?
- tptacek 7y ago
  Moreover, the entire point of Hustler v Falwell was that no reasonable person could have believed the Hustler piece was anything but satire, while the whole point of a "deep fake" is that the opposite is meant to be true. 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.
  - zaroth 7y ago
    Maybe in the venn diagram of deep fakes and revenge porn, these are not two perfectly overlapping sets, and since first amendment issues have to pass strict scrutiny, the law could still be in Constitutional jeopardy? I Am Definitely Not A Constitutional Lawyer.
  - moate 7y ago
    Or arguing in bad faith because you just think people should always be able to "say" whatever they want whenever they want because slippery slope >> thought police >> being an asshole sends you to jail.
    - whenchamenia 7y ago
      Freedom of speech, should apply reguardless of good faith. Who would you have draw the line?
TomMckenny 7y ago
Not to defend the Virginia statute but as devils advocate, couldn't they argue that their law does not apply to parody and only protects non-public figures? So couldn't they argue the statute would not apply to the Hustler-Falwell parody for those two reasons?
- heyitsguay 7y ago
  Why wouldn't you defend this statute?
  - TomMckenny 7y ago
    I haven't read enough about it to have an opinion yet. Does the wording in fact contradict Hustler Magazine v. Falwell? Would it outlaw satyrical images of politicians? Thus my question above.
adamlett 7y ago
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 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.
- tptacek 7y ago
  Yes; this is basic enough to be in the syllabus for the case: 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.
  - sandworm101 7y ago
    Exactly. So a deepfake of a clean-cut star, say Taylor Swift, in an over-the-top hardcore porn clip would not reasonably be considered real and so could be a legitimate parody. I forgot to mention perhaps the greatest political porn title: "Who's Nailin Palin?" ... the perfect recent embodiment of the Falwell holding.

tick_tock_tick 7y ago

I don't see how this can possible be legal vs the First Amendment.

moate 7y ago
The same reason that harassment and slander are crimes. There's always limits to what you can "say" when what you're saying isn't just unpopular but actually damaging.
- thrwayxyz 7y ago
  Or satire if you put a disclaimer that it's not the person depicted. Would you want a cartoonist arrested for the involuntary porn of painting trump naked with a micro penis?
- pretendscholar 7y ago
  slander is not a crime
  - chrshawkes 7y ago
    Libel is illegal and in the same category.
    - ThrustVectoring 7y ago
      It's a tort, not a crime. The individual you defamed can sue you in civil court over the damage you do to their reputation, but the US government can't prosecute you for it.
  - ThrustVectoring 7y ago
    It's a civil tort, and you have (limited) first amendment protections against having your first amendment rights limited by government intervention via civil court. See also: https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
- 7y ago

heyitsguay 7y ago

Very disappointed but very unsurprised to see that the initial HN reaction is "this shouldn't be illegal". Where is your respect for others?

commandlinefan 7y ago
Where is your respect for justice?
- heyitsguay 7y ago
  With the lawmakers making this law who are trying to protect people from injustice.
TallGuyShort 7y ago
Any new law has the potential to result in no-knock SWAT team raids and online censorship with minimal judicial oversight when someone violates a technicality in the law and pisses off the wrong person. And despite that many times said laws don't even result in a decrease in the undesirable behavior after all that. It's always worth looking at the potential abuses of a law (especially one that that effectively makes an exception to the 1st Amendment) even though the thing it claims to address is reprehensible. 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?
- heyitsguay 7y ago
  Nothing you say here is special to this law though, as opposed to any other law that gets passed. If you're of the opinion that no law is a good law, i think we'll have to just disagree. All I'm seeing is justification for inaction on an issue with pretty clear precedents in established law on revenge porn and libel/slander.

mjevans 7y ago

Shouldn't this already be covered by defamation and/or laws related to truth in marketing?

markdown 7y ago
> laws related to truth in marketing I'm a regular joe consumer, and as far as I can tell, there are either no such laws, or they are never enforced.
ThrustVectoring 7y ago
Yeah, this clearly counts as defamation in my opinion. It'd be difficult to prove damages, though, so it's unlikely to ever come to trial. Adding this as a category of per se defamation so that plaintiffs no longer need to prove economic harm from it seems like the natural solution to me.

apo 7y ago

> The new law amends existing law in the Commonwealth that defines distribution of nudes or sexual imagery without the subject's consent —often called revenge porn —as a Class 1 misdemeanor. The new bill updated the law by adding a category of "falsely created videographic or still image" to the text. 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 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?

pfisch 7y ago
> A very talented artist creates a realistic watercolor of the President in a compromising situation with Kim Jong-un and posts to Instagram. 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.
- solotronics 7y ago
  Why? I thought we had freedom of speech in the US. 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?

jsnider3 7y ago

There's a good chance that this law is unconstitutional, but I doubt anyone wants to be the first to test their luck in court.

LAMike 7y ago

For everyone saying this is a violation of the 1st amendment - 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.

donatj 7y ago
I'm not sure if this is a joke or not. 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
- TomMckenny 7y ago
  >I'm not sure if this is a joke or not. https://en.wikipedia.org/wiki/Poe%27s_law 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.
  - randallsquared 7y ago
    That engine is consistency. It just doesn't apply to actually existing law.
    - TomMckenny 7y ago
      So they will return North America to the Indians? 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.

fouc 7y ago

Deepfake revenge porn could be counter-intuitively good for privacy. If people's real porn images get leaked, they can just claim it was deepfaked. Trying to make a law against this could actually be a massive overreaction.