Instead of comprehensive federal regulation of election-rigged media, states are rapidly passing laws to combat deep-seated political fraud, according to a new report from the Brennan Center for Justice.
Nineteen states have enacted laws regulating election fraud, and another 26 have considered bills to do so. But an NBC News review of the laws and a new analysis by the Brennan Center, a nonpartisan law and policy institute affiliated with New York University School of Law, show that most states’ counterfeiting laws are so broad that they would face tough court challenges. and some are so narrow that they leave many options for bad actors to use technology to deceive voters.
“It’s really incredible how many of these laws have been passed,” said Larry Norden, vice president of the Brennan Center’s Program on Elections and Government and author of the analysis released Tuesday.
The study found that states have introduced 151 different bills this year that address depth fraud and other deceptive media aimed at deceiving voters, accounting for a quarter of all state AI laws.
“It’s not something you usually see, and I think it reflects how quickly this technology is evolving and how concerned lawmakers are that it could affect political campaigns,” he said.
Deepfake technology, which uses artificial intelligence to imitate a person with audio or video, has been around for years. But this year’s election is the first in which the technology is so widespread that almost anyone with a computer can create a believable deep fake and post it on social media for cheap or free.
Senate Majority Leader Chuck Schumer, D-N.Y., mentioned in the interview On Thursday, he said he would like to pass federal legislation to regulate political deep-pocketing, but for such bills to pass before the election, they would likely have to be added to a funding bill that must be passed by the end of September, a month before Election Day.
Many of the state laws that have been passed do not criminalize deep-pocket fraud, instead allowing candidates to sue political opponents who use the technology in political ads without disclosing that it is being used. Many of them apply only 90 or 60 days before the election.
The laws don’t address deeply politically-themed scams, such as using fake videos of violence at polling stations to persuade voters to stay home on polling day because the videos don’t depict the candidates running for office.
Some laws also require plaintiffs to prove that someone committing deep fraud acted with “actual malice,” which is easier than proving a rival campaign than a prankster on social media.
A few laws, such as Tennessee’s Ensuring Likeness, Audio and Image Security (ELVIS) Act of 2024, go in the opposite direction and seek to end a wide range of potentially deceptive deep spoofs. Norden said people sued under these laws would have a good chance of winning on First Amendment grounds. Similar bills are being considered in Illinois and South Carolina.
“Broader bills will be more scrutinized by the courts,” he said.
This year there have been at least two major examples of deep deception about a political candidate being used to massively mislead voters. In February, political consultant Steve Kramer devised a plan in which robocalls played a deep-fake Joe Biden recording telling New Hampshire Democrats not to vote in the primary. And this week there’s X owner Elon Musk He supported Donald Trump for the president shared a deeply fake video Democratic presidential candidate Kamala Harris misrepresents her political positions. The video’s creator initially tagged it as a parody, but the version shared by Musk removed the tag.
None of these cases were punished by deeply fraudulent special laws. Attorney General of New Hampshire Cramer accused There are 26 felony counts, all related to existing laws that prohibit voter suppression and candidate canvassing. New Hampshire did not have an artificial intelligence law at the time, although a law has since been passed.
Apparently, the new law would cover Kramer’s robocall scams. His definition The crime of deepfake involves the use of technology to spread a deepfake knowingly to damage the reputation of a specific person in the context of a political campaign without acknowledging that the technology was used.
The Federal Communications Commission, which regulates US telecommunications, Kramer was fined $6 million, accused him of violating existing agency rules against spoofing phone numbers for fraud. The FCC has since adopted a rule stating can fine people who use deepfakes to trick peoplebut only over telephone networks as it has no jurisdiction over social media.
Norden said Musk’s video is unlikely to violate any existing state laws and is not part of an official campaign.
“There’s almost always some sort of parody exception, and even if there wasn’t a label, Musk would claim it was a parody,” he said.