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A bipartisan bill aimed to hold creators and distributors of sexually explicit “deepfakes” accountable unanimously passed in the United States Senate last month, seen as a crucial step in protecting victims of pornography by artificial intelligence.
The Disrupt Explicit Forged Images and Non-Consensual Edits (DEFIANCE) Act of 2024 was introduced by Rep. Alexandria Ocasio-Cortez (NY-14) back in March. The bipartisan bill, led by U.S. Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC), was received in the House on July 24.
The DEFIANCE Act refers to deepfakes as digital forgeries, which can be both entirely fictitious and manipulated images of real people. These deepfakes can cause victims to feel helpless because they may not be able to determine who created the image or how to prevent more from being made, the bill states.
According to the bill’s language, these deepfakes are considered a form of image-based sexual abuse because of how harmful they are to victims.
“The deepfakes may not be real, but they cause very real harm. It’s time to return power to the victims and give them a tool to demand justice from those responsible for these horrific images,” Sen. Durbin said back in March.
What the bill accomplishes
When the bill was first introduced, Congresswoman Ocasio-Cortez pointed to the staggering number of deepfake videos created and shared across the internet.
“As deepfakes become easier to access and create — 96% of deepfake videos circulating online are nonconsensual pornography — Congress needs to act to show victims that they won’t be left behind,” she said.
Under the DEFIANCE Act, victims of deepfakes can file civil action against a perpetrator.
Victims can receive liquidated damages of $150,000 or $250,000 if the images were created 1) in connection with an attempted or actual sexual assault, stalking or harassment of the victim by the defendant or 2) the direct or proximate cause of an attempted or actual sexual assault, stalking or harassment of the victim by any individual.
The bill allows for actual damages including any profits the defendant made in relation to the deepfakes that aren’t otherwise considered in computing the actual damages.
The statute of limitations states any civil action will be barred unless the complaint is filed no later than 10 years from the date when the victim reasonably discovers the images or the date when the victim turns 18 years old. This is more than double the existing default statute of limitations for crimes in this category.
The Rape, Abuse & Incest National Network (RAINN) played an integral role in developing the DEFIANCE Act.
Stefan Turkheimer, Vice President of Public Policy for RAINN, said the organization has seen an increase in calls from victims of deepfakes, particularly those under the age of 18.
He said having federal legislation on the topic is crucial for an issue that isn’t defined by state lines.
“Nobody on Instagram is concerned about, you know, what state one person is in or whatever else, and you’re really going to need a federal action that allows you to reach those people,” Turkheimer said.
AI law on the state level
The DEFIANCE Act places no preemption on state or tribal governments enforcing their own laws on AI pornography if those laws are more protective than federal law.
Right now, the state of Indiana has two laws in place against the use of artificial intelligence in sexually explicit imagery and election tampering.
House Bill 1047, signed into law by Governor Eric Holcomb in March, makes the distribution of unauthorized “intimate” images generated or altered by AI a misdemeanor. However, it does not offer the extent of protection the DEFIANCE Act would.
House Bill 1133, also signed into law in March, requires a disclaimer when AI-generated media is used in an election campaign. It also allows a candidate who thinks they’ve been depicted in fabricated media without a disclaimer to bring a civil case against another person.
Across the United States, several states have enacted legislation to hold accountable those behind the scenes of AI pornography, including California, Georgia, Hawaii, Illinois, Minnesota, New York, Texas and Virginia.
While state statutes are important, Turkheimer believes having federal legislation offers more opportunities to reach people where they are.
And though the DEFIANCE Act specifically focuses on civil action for victims, Turkheimer said criminal action is a crucial step in ensuring perpetrators are fully held responsible for their actions.
“I think the civil gives you remedies, and the criminal gives you repercussions,” he said.
Ultimately, he’s hopeful the DEFIANCE Act will pass the House and become law to protect victims across the United States from the dark side of artificial intelligence.
“When someone sees a photo of them online, a nonconsensual, intimate image, they feel powerless,” he said. “And they really need a law that recognizes that and gives them their power back.”
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