‘Deep fakes’ could see a crackdown in Washington political campaigns

OLYMPIA – Everything is not what it seems – at least, that may be the case with deep fakes.

This session, the Legislature is considering a bill that limits the distribution of deceptively manipulated media – deep fakes. On Monday, that bill got a hearing in the state House of Representatives.

Deep fakes, also referred to as “synthetic media,” are videos, images or audio pieces that have been manipulated to depict a scene different from what actually took place. Deep fakes use artificial intelligence and machine learning to create seemingly real depictions of people for often nefarious purposes like disinformation and blackmail.

The Secretary of State’s office worked with Sen. David Frockt, D-Seattle, to craft the proposal. Brian Hatfield, legislative director for the office, said the bill falls in line with their priority to secure elections “both in the physical realm and in cyberspace.”

“Everyone can agree that realistic looking videos of candidates making extremely unpopular statements or saying the exact opposite of what they believe is not acceptable,” Hatfield said at a House State Government and Tribal Relations hearing on Monday.

Frockt’s bill, which already passed the Senate last week, would place limits on the use of deep fakes in campaign materials within 60 days of an election. Deep fakes can be used but must be distributed with a clear disclosure that the media has been manipulated. The bill does not ban the use of deep fakes outright.

Individuals depicted in campaign-related deep fakes without a disclosure would be allowed to take legal action against the distributors of the media. Individuals could seek an injunction to stop the distribution of the media in question and the awarding of damages – if they can prove a violation of the disclosure requirement by “clear and convincing evidence.”

Disclosure exceptions are provided for news organizations who acknowledge the media’s manipulation and media made for the purposes of satire and parody.

Stephen Prochaska, researcher with the University of Washington’s Center for an Informed Public, said deep fakes are a different method of spreading misinformation and disinformation compared to the traditional means of taking a video out of context, selectively cropping a photo or recycling an old image for a different situation.

The quality of deep fakes may be higher, Prochaska said, but other means of manipulating media do just as well in driving misinformation in the right environment.

“You don’t need a very clear video when you can just have a grainy video that you can just tell an audience what it says,” Prochaska said.

Prochaska acknowledges that the concept of deep fakes can be unsettling, but similar to other means of misinformation, there are ways of separating them from the truth. Having a “healthy skepticism,” referencing other sources and considering things in a historical context all go far in combating any kind of misinformation or disinformation, Prochaska said.

“There are other cues that we can take into account,” Prochaska said. “Just because we can’t tell something with the naked eye, does not necessarily mean that we are completely defenseless against this.”

Some members of the House committee had concerns with the bill.

Rep. Mike Volz, R-Spokane, wanted more information as to whether the bill aligns with legal precedent that provided “very broad latitude” for political speech. Rep. Jim Walsh, R-Aberdeen, had concerns about satire and parody not being well defined in the bill and how that could affect campaigning.

“It carves out satire and parody, which I think it should, but do we have an understanding of what that means?” Walsh said. “Could we add some clarity there so it’s neither too broad nor too narrow?”

Frockt said he understands some people may have First Amendment concerns about the proposal, but his bill “respects that.” The proposal, Frockt said, promotes transparency crucial to campaigning.

“Disclosure is the bread and butter of our electoral system and our electioneering system in Washington state,” Frockt said during a Senate floor debate last week. “I think this bill is in that tradition.”

The bill is scheduled for a committee vote on Wednesday. If passed, it could be heard by the full House.