Several years ago, special equipment was needed to make a deepfake video. That’s no longer true, said Marc Berkman, CEO of the Organization for Social Media Safety, a national nonprofit organization dedicated to social media safety.

“This is a clear public policy issue,” Berkman said. “This is a behavior that we recognize causes harm, does not conform to societal values, relies on new technology, and so there should be a public policy response.”

Adding to existing laws

Indiana, Texas and Virginia in the past few years have enacted broad laws with penalties of up to a year in jail plus fines for anyone found guilty of sharing deepfake pornography. In Hawaii, the punishment is up to five years in prison.

Many states are combatting deepfake porn by adding to existing laws. Several, including Indiana, New York and Virginia, have enacted laws that add deepfakes to existing prohibitions on so-called revenge porn, or the posting of sexual images of a former partner without their consent. Georgia and Hawaii have targeted deepfake porn by updating their privacy laws.

Other states, such as Florida, South Dakota and Washington, have enacted laws that update the definition of child pornography to include deepfakes. Washington’s law, which was signed by Democratic Gov. Jay Inslee in March, makes it illegal to be in possession of a “fabricated depiction of an identifiable minor” engaging in a sexually explicit act — a crime punishable by up to a year in jail.

Washington state Sen. Tina Orwall, a Democrat, said that she and her colleagues wanted to act right away because it can be hard to keep up with this kind of technology.

“It [technology] just moves so fast,” she said. “Deepfakes and AI have been around, but now it seems like it’s accelerated. We’re just concerned about how we can protect people from the parts that are harmful.”

Deepfake pornography bills also are advancing in other states, including Illinois, Missouri, New Jersey and Ohio.

“States need to have their own laws that empower local law enforcement to be able to step in and act in these circumstances,” said Illinois Republican state Sen. Dan McConchie, who is sponsoring a bill that would prohibit the creation of deepfakes that feature minors engaged in sexual activity. “We can’t wait for an overtaxed federal judiciary to hopefully get around to it at some point.”

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