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Despite previous rejection, political deepfake regulation still on the legislative agenda

Increased awareness of deepfake technology appears to have spurred Assemblymember Marc Berman’s (D-Palo Alto) decision this week to expand his fight against the use of deepfakes to the realm of political communications. Earlier in the legislative cycle Assemblymember Berman introduced AB 602, a bill to provide a civil cause of action for individuals whose likenesses are used without their consent in sexually explicit deepfakes. AB 602 was passed out of the Assembly and is set to be considered by the Senate Judiciary Committee on June 25.

On Wednesday Assemblymember Berman amended a different bill to entirely remove the previous content of the bill and replace it with new language – a procedure colloquially known to as a “gut and amend.”
As amended, AB 730 would prohibit the distribution of a manipulated image, video, or audio recording of a candidate for election that appears to be authentic if the distribution is made within 60 days of an election and is done with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

A person found to have violated this prohibition could be required to pay general and special damages to the candidate, and could be required by the court to pay the candidate’s attorney’s fees and costs.

As currently written, AB 730 fails to make any provision for speech protected by the First Amendment. Though the bill creates limited exceptions from liability where a disclosure is provided identifying the image or recording as being manipulated, those exceptions are almost certainly insufficient to ensure that constitutionally protected speech is not punished.

This is not the first time this year that a legislator has taken on the issue of political deepfakes. Assemblyman Tim Grayson’s (D-Concord) AB 1280 would have made it a crime to distribute a deepfake with the intent of coercing or deceiving any voter into voting for or against a candidate or measure within 60 days of an election. AB 1280 was opposed by groups including CNPA and the ACLU and died in its first committee.

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