Legislation to Ban and Criminalize Sexually Explicit Deepfakes Expands Across States
Key Takeaways
Nonconsensual explicit deepfakes use AI to create sexually explicit images of real people without their permission, with women and girls being the primary targets of these manipulated images.
Nine states have enacted state AI deepfake laws to combat this issue, with some providing civil remedies while others establish criminal penalties for creating or distributing these images.
Sexually explicit deepfake legislation has expanded rapidly since 2019, when Virginia became the first state to add deepfakes to existing revenge porn laws, followed by California, Hawaii, Georgia, Illinois, Texas, New York, Minnesota, and Louisiana.
The volume of nonconsensual pornographic images AI has grown dramatically, with researchers finding a 54% increase in deepfake images uploaded to public websites in 2023 compared to the previous year.
More states are expected to pass deepfake revenge porn laws in 2024, with Ohio, California, New Hampshire, and Oklahoma already considering legislation to protect victims and establish legal consequences for perpetrators.
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Despite all the promise and benefits of AI technology, we're already seeing some of the real-world, negative impacts as AI is used to produce nonconsensual, sexual deepfake images and videos showing real individuals depicted in a sexually explicit manner. These images often contain the face of an actual person on a naked or partially clothed body that is not their own and disproportionately target women. Along with deepfakes aimed at electoral candidates , states are moving quickly to combat the alarming proliferation of nonconsensual explicit deepfakes.
The Growing Scale of Nonconsensual Explicit Deepfakes
While generative AI chatbots are relatively new, nonconsensual explicit deepfakes date back to as early as 2017 . As AI technology accelerates, the realistic quality of AI-generated images and videos continues to improve, producing images that can easily be confused for a real person. The volume of deepfakes is also accelerating. Independent researchers found that in the first nine months of this year, 113,000 deepfake images were uploaded to 35 different websites that either exclusively or partially host explicit deepfake videos — a 54% increase from all of 2022. Additionally, the research conducted on explicit deepfakes only includes images found on public websites, there are likely far more images exchanged via text messages and messaging apps that researchers are unable to account for.
The primary targets of the explicit deepfake images have been celebrities and social media influencers. However, we've now seen alarming recent
incidents where nonconsensual explicit deepfakes were created of female high school students and circulated among the student body at their schools. Parents, school officials, and lawmakers expressed outrage at the incidents and called for laws to address explicit deepfakes.
State Legislative Response to Deepfake Technology
Unlike many AI-related issues, state policymakers have quickly moved to address the rise of nonconsensual explicit deepfakes. Most states already have statutes prohibiting the sale or distribution of nonconsensual pornographic images, which lawmakers can amend to explicitly include deepfakes. In total, nine states have enacted legislation directly targeting explicit deepfakes. Some argue that current laws addressing the transmission of nonconsensual pornographic images would be broad enough to cover deepfakes in many states, but lawmakers want to update those statutes to ensure their inclusion.
Early Adopters: 2019-2021 Legislation
In 2019, Virginia became the first state to do so ( VA HB 2678 ) by adding nonconsensual explicit deepfakes to an existing "revenge porn" law. California ( CA AB 602 ) also enacted an explicit deepfake law in 2019 and lawmakers in Hawaii ( HI SB 309 ) and Georgia ( GA SB 78 ) followed suit in 2021.
Recent State Laws: Civil vs Criminal Approaches
The trend continued this year. Illinois enacted legislation ( IL HB 2123 ) establishing a cause of action for individuals who had their image used in a explicit deepfake without their consent and last week the governor signed another bill ( IL SB 382 ) into law, which adds the term "digitally altered explicit image" to the Illinois Remedies for Nonconsensual Dissemination of Private Sexual Images. Notably, the laws in California and Illinois give victims the ability to file lawsuits against perpetrators but do not carry criminal penalties. In contrast, Texas ( TX SB 1361 ), New York ( NY SB 1042A ), and Minnesota ( MN HF 1370 ) enacted legislation this year adding criminal offenses to deepfake laws.
Protecting Minors from Explicit Deepfakes
Additionally, Louisiana ( LA SB 175 ) and Texas ( TX HB 2700 ) enacted laws specifically prohibiting minors from being depicted in any sexually explicit deepfake image.
Looking Ahead: 2024 Legislative Proposals
We expect this trend to continue into 2024 as lawmakers build protections for victims whose images are used in sexually explicit deepfakes. Already, Ohio , California , and New Hampshire are set to consider bills banning nonconsensual explicit deepfakes in 2024. And Oklahoma will consider a bill amending its current laws to state that child pornography includes AI-generated images showing a child in a sexually explicit manner.
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