Capitol Alert

California is moving to ban deepfakes. What are they, anyway?

Editor-in-Chief at ProPublica discusses the issue of ‘fake news’

Stephen Engelberg, Editor-in-Chief at ProPublica, discussed the issue of “fake news” and media distrust on Tuesday Feb. 26, 2019 during a Roger Tatarian Symposium held at Fresno State’s Satellite Student Union.
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Stephen Engelberg, Editor-in-Chief at ProPublica, discussed the issue of “fake news” and media distrust on Tuesday Feb. 26, 2019 during a Roger Tatarian Symposium held at Fresno State’s Satellite Student Union.

California lawmakers, citing election integrity, are moving to ban the distribution of “deepfake” video or audio clips aimed at damaging political candidates, drawing condemnation from First Amendment supporters.

The move comes as lawmakers fear that sophisticated doctored clips, such as one falsely portraying House Speaker Nancy Pelosi as slurring her words, could allow malicious parties to sabotage the election.

Assembly Bill 730, sponsored by Assemblyman Marc Berman, D-Palo Alto, passed unanimously out of the Assembly and now is being considered by the Senate Committee on Elections and Constitutional Amendments.

AB 730 specifically prohibits “a person committee or other entity from knowingly or recklessly distributing deceptive audio or visual media of a candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate within 60 days of an election at which a candidate for elective office will appear on the ballot,” according to that committee’s analysis of the bill.

The bill contains an exemption for media that includes a disclosure stating that “this (video/audio) has been manipulated.”

“Deepfakes – fabricated photos and recordings of someone appearing to say or do something they did not – are a powerful and dangerous new technology with the potential to sow misinformation and discord among an already hyper-partisan electorate,” Berman said in a statement supporting his bill. “Deepfakes distort the truth, making it difficult to distinguish between legitimate and fake media and more likely that people will accept content that aligns with their views.”

However, the committee’s analysis of the bill found that it “has the potential to provide more problems than solutions.”

One example the committee analysis gives is a candidate who makes minor edits to an already posted photograph of them interacting with voters, such as brightening or cropping the image, without including the caveat that the photo has been manipulated.

“The photo has now been altered and is no longer the original. The candidate also knowingly distributed the updated photo with the intent to deceive a voter into voting for the candidate (i.e. makes the candidate look better) and did not put a disclaimer,” the analysis found.

The analysis also questioned the government’s role in handling such manipulations, and whether such a bill would run afoul of First Amendment protections. Finally, there’s the nature of going viral itself.

“Once a post, tweet, or video is uploaded to social media, it becomes extremely difficult to control, especially if, that post, tweet, or video is shared by others and gains popularity,” the analysis found.

The bill is opposed by both the California Broadcasters Association and the California News Publishers Association, the latter of which wrote in a letter that, “The inevitable result if AB 730 were to become law would be a profound chilling effect on political speech – the very thing the First Amendment was designed to prevent.”

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Andrew Sheeler covers California’s unique political climate for McClatchy. He has covered crime and politics from Interior Alaska to North Dakota’s oil patch to the rugged coast of southern Oregon. He attended the University of Alaska Fairbanks.

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