Deepfake pornography, particularly nonconsensual deepfake porn of women, has become increasingly prevalent in recent years. Despite this, lawmakers seem to be more focused on protecting electoral integrity through legislation on political deepfakes rather than addressing the intimate image question. This disparity in priorities has resulted in a lack of comprehensive laws and enforcement mechanisms to tackle the issue of nonconsensual deepfakes.
In Michigan, Republican state representative Matthew Bierlein took an interest in nonconsensual deepfake legislation after initially exploring laws related to political deepfakes. Working with Democratic representative Penelope Tsernoglou, Bierlein cosponsored a package of bills aimed at addressing nonconsensual deepfake content. Their collaboration was spurred by the viral spread of nonconsensual deepfakes featuring Taylor Swift and the need to take action promptly. Michigan, with its full-time legislature and well-paid staffers, saw an opportunity to lead the Midwest region in addressing the nonconsensual deepfake issue at the state level.
Across different states, the penalties for creating and sharing nonconsensual deepfakes vary significantly. Some states allow for both civil and criminal cases against perpetrators, while others may only provide for one of the two. Legislation like the one in Mississippi focuses specifically on minors, reflecting a growing concern over young individuals using generative AI to create explicit content of their peers. In contrast, laws targeting nonconsensual deepfakes of adults are less clear-cut, often requiring intent to harm the subject to be proven.
While there is broad consensus that nonconsensual deepfakes of minors are morally wrong, determining what constitutes ethical behavior regarding adult content is more challenging. Many proposed laws and current legislation revolve around proving the malicious intent of the individual behind the creation and dissemination of nonconsensual deepfake material. This “squishier” area of legislation highlights the complexities involved in addressing nonconsensual deepfakes of adults and the need for clearer guidelines and safeguards.
As the prevalence of deepfake technology continues to grow, the legal landscape surrounding nonconsensual deepfakes will likely face increased scrutiny and calls for more uniform regulations. The disparity in state laws and enforcement mechanisms poses a challenge to effectively combatting the spread of nonconsensual deepfake content. By establishing clearer guidelines, penalties, and protections, lawmakers can work towards creating a more cohesive and comprehensive framework for addressing nonconsensual deepfakes across different states in the US.
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