14 ms·

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 convinc

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

moffkalast 3y ago
Doesn't this also mean that a deepfake presented as evidence of crime makes you guilty until proven innocent?
- bombcar 3y ago
  No, just that you can't hand wave away all video evidence by saying "deepfake". 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
  - unshavedyak 3y ago
    It also depends on the court in question. Ie in my recent criminal Jury experience; if i were to pretend deepfakes were used then it wouldn't be on the prosecution to prove that the video is without a doubt real, but rather that a "reasonable person" would believe that the video is real. Which is quite open to interpretation. 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.
    - sterlind 3y ago
      I think the reasonable person standard is used for evaluating whether someone's behavior is okay. Like, if you tased someone because they were suspicious, the question would be whether a reasonable person would conclude they were suspicious based on what they did. I think you're thinking of reasonable doubt?
      - bombcar 3y ago
        Yeah, reasonable doubt applies in "well maybe aliens completely replaced the body and mind of this person before he did this thing recorded on fifteen different phones." Arguing that a video randomly was deepfaked would go a lot further if you could show other evidence that such was happening.
      - unshavedyak 3y ago
        Nope, i'm thinking about "reasonable person". I was just in the case (a few weeks ago) so this is quite fresh in my mind. 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.
- ImPostingOnHN 3y ago
  there is no evidence that makes you guilty, it requires a judge or jury to find you so, versus the default state of innocence
  - ranger_danger 3y ago
    Yes, but people willing to lie are going to get away with framing others even easier than before, especially if the defendant has bad/no lawyers.
- dragonwriter 3y ago
  No, it does not. It means you can't exclude it from being presented because it “might be” a deepfake. The fact that something is presented as evidence doesn’t mandate the jury to accept the evidence as dispositive.
- wolrah 3y ago
  > Doesn't this also mean that a deepfake presented as evidence of crime makes you guilty until proven innocent? 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.
pcthrowaway 3y ago
But then the defense has to pay the cost of hiring an expert to prove it's not authentic. 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.
- ceejayoz 3y ago
  > But then the defense has to pay the cost of hiring an expert to prove it's not authentic. 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.
  - dwighttk 3y ago
    The judge just said to Musk come say that you didn’t say the statement in the video instead of having a lawyer say “faking videos is possible”
    - ceejayoz 3y ago
      Yes. Which he's not gonna do unless he wants a perjury charge, because it's a seven year old video on a reputable channel with multiple well-known reporters interviewing him.
- falcolas 3y ago
  Hiring expert witnesses is what lawyers do when it comes to anything remotely specialized. Deepfakes are nothing new in this regards.
  - ranger_danger 3y ago
    Yes but people without access to good enough lawyers are going to get the short end of the stick as always, and get framed for something they didn't do. The number of innocent people in jail could skyrocket.
indymike 3y ago
Actually, a witness who can vouch that the video depicts what they saw of a live event.
ridgered4 3y ago
Isn't this backwards in criminal court? Wouldn't the onus be on the prosecution to prove that the video was real? 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.
- anonymouskimmer 3y ago
  The onus on the prosecution/plaintiff is to prove the defense guilty at whatever standard of evidence is required for the case. Not to prove or disprove any claims about evidence. If the defense makes a claim about any piece of evidence, it is up to them to prove to the court's satisfaction that their claim is truthful.
  - gizmo686 3y ago
    The burden is on whichever side is attempting to introduce a piece of evidence. 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/ 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/ 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.
    - anonymouskimmer 3y ago
      Those are informative links. Sure. But that doesn't mean they have to prove it wasn't manufactured by martians 50 million years ago just because the other side brought up that possibility just to bring the piece of evidence in to the trial.
konschubert 3y ago
People have faked letters and documents for centuries. 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.
- johndhi 3y ago
  Interestingly, actually, the "way of weighting the trustworthiness of a piece of evidence" is generally not the job of the court, but of the jury. Assuming the evidence is admissible (meets some minimum standards), the court system is premised on a jury of peers looking at something and deciding if they think it's true or not (such as the testimony of a witness).
phpisthebest 3y ago
Normally in court you have to provide foundation that the evidence is accurate, for video that normally means the person that recorded the video tells the jury it is a true and accurate representation of what they saw. 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)
- majormajor 3y ago
  What Musk is doing is sneakier and more deceptive in a different way than that, at an earlier stage. He's trying to get out of having to make any definitive statement about if it's a real video or not. From a linked article from the one posted here, https://www.theguardian.com/technology/2023/apr/27/elon-musks-statements-could-be-deepfakes-tesla-defence-lawyers-tell-court 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.
  - DoreenMichele 3y ago
    Funny, I got the impression he was basically saying "I'm free to say anything at all now and can no longer be held in any way accountable for my own words."
  - 3y ago

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

moffkalast 3y ago

Doesn't this also mean that a deepfake presented as evidence of crime makes you guilty until proven innocent?

bombcar 3y ago
No, just that you can't hand wave away all video evidence by saying "deepfake". 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
- unshavedyak 3y ago
  It also depends on the court in question. Ie in my recent criminal Jury experience; if i were to pretend deepfakes were used then it wouldn't be on the prosecution to prove that the video is without a doubt real, but rather that a "reasonable person" would believe that the video is real. Which is quite open to interpretation. 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.
  - sterlind 3y ago
    I think the reasonable person standard is used for evaluating whether someone's behavior is okay. Like, if you tased someone because they were suspicious, the question would be whether a reasonable person would conclude they were suspicious based on what they did. I think you're thinking of reasonable doubt?
    - bombcar 3y ago
      Yeah, reasonable doubt applies in "well maybe aliens completely replaced the body and mind of this person before he did this thing recorded on fifteen different phones." Arguing that a video randomly was deepfaked would go a lot further if you could show other evidence that such was happening.
    - unshavedyak 3y ago
      Nope, i'm thinking about "reasonable person". I was just in the case (a few weeks ago) so this is quite fresh in my mind. 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.
ImPostingOnHN 3y ago
there is no evidence that makes you guilty, it requires a judge or jury to find you so, versus the default state of innocence
- ranger_danger 3y ago
  Yes, but people willing to lie are going to get away with framing others even easier than before, especially if the defendant has bad/no lawyers.
dragonwriter 3y ago
No, it does not. It means you can't exclude it from being presented because it “might be” a deepfake. The fact that something is presented as evidence doesn’t mandate the jury to accept the evidence as dispositive.
wolrah 3y ago
> Doesn't this also mean that a deepfake presented as evidence of crime makes you guilty until proven innocent? 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.

pcthrowaway 3y ago

But then the defense has to pay the cost of hiring an expert to prove it's not authentic. 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.

ceejayoz 3y ago
> But then the defense has to pay the cost of hiring an expert to prove it's not authentic. 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.
- dwighttk 3y ago
  The judge just said to Musk come say that you didn’t say the statement in the video instead of having a lawyer say “faking videos is possible”
  - ceejayoz 3y ago
    Yes. Which he's not gonna do unless he wants a perjury charge, because it's a seven year old video on a reputable channel with multiple well-known reporters interviewing him.
falcolas 3y ago
Hiring expert witnesses is what lawyers do when it comes to anything remotely specialized. Deepfakes are nothing new in this regards.
- ranger_danger 3y ago
  Yes but people without access to good enough lawyers are going to get the short end of the stick as always, and get framed for something they didn't do. The number of innocent people in jail could skyrocket.

indymike 3y ago

Actually, a witness who can vouch that the video depicts what they saw of a live event.

ridgered4 3y ago

Isn't this backwards in criminal court? Wouldn't the onus be on the prosecution to prove that the video was real? 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.

anonymouskimmer 3y ago
The onus on the prosecution/plaintiff is to prove the defense guilty at whatever standard of evidence is required for the case. Not to prove or disprove any claims about evidence. If the defense makes a claim about any piece of evidence, it is up to them to prove to the court's satisfaction that their claim is truthful.
- gizmo686 3y ago
  The burden is on whichever side is attempting to introduce a piece of evidence. 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/ 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/ 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.
  - anonymouskimmer 3y ago
    Those are informative links. Sure. But that doesn't mean they have to prove it wasn't manufactured by martians 50 million years ago just because the other side brought up that possibility just to bring the piece of evidence in to the trial.

konschubert 3y ago

People have faked letters and documents for centuries. 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.

johndhi 3y ago
Interestingly, actually, the "way of weighting the trustworthiness of a piece of evidence" is generally not the job of the court, but of the jury. Assuming the evidence is admissible (meets some minimum standards), the court system is premised on a jury of peers looking at something and deciding if they think it's true or not (such as the testimony of a witness).

phpisthebest 3y ago

Normally in court you have to provide foundation that the evidence is accurate, for video that normally means the person that recorded the video tells the jury it is a true and accurate representation of what they saw. 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)

majormajor 3y ago
What Musk is doing is sneakier and more deceptive in a different way than that, at an earlier stage. He's trying to get out of having to make any definitive statement about if it's a real video or not. From a linked article from the one posted here, https://www.theguardian.com/technology/2023/apr/27/elon-musks-statements-could-be-deepfakes-tesla-defence-lawyers-tell-court 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.
- DoreenMichele 3y ago
  Funny, I got the impression he was basically saying "I'm free to say anything at all now and can no longer be held in any way accountable for my own words."
- 3y ago