US lawmakers are proposing to let people sue over fake pornographic images of themselves after explicit AI-generated photos of Taylor Swift went viral. The Destroying Explicit Falsification of Images and Nonconsensual Editing (DEFIANCE) Act would create a civil right of action for "digital forgery" that depicts the private parts of an identifiable individual without their consent, allowing victims to seek financial compensation from anyone who "knowingly produces or possesses" an image with the intent to disseminate it.
The bill was co-sponsored by Dick Durbin (Illinois Senator), Lindsey Graham (South Carolina Senator), Amy Klobuchar (Minnesota Senator) and Josh Hawley (Missouri Senator). The bill builds on a provision in the Violence Against Women Act Reauthorization Act of 2022, which adds a similar right of action for non-fabricated explicit images. In a brief, the sponsors describe it as a response to the "exponential" increase in digitally doctored explicit AI images, and point to Swift's case as an example of how fake images "are used to exploit and harass women — particularly public figures, politicians, and celebrities."
Pornographic AI-manipulated images, often called deepfakes, have grown in popularity and sophistication since the term was coined in 2017. Off-the-shelf generative AI tools make their production easier, even on systems with guardrails against explicit images or impersonation, which have been used for harassment and extortion.
But so far, there are no clear legal remedies in many parts of the country. Nearly all states have passed laws banning non-consensual, non-simulated pornography, although the process has been slow. There are far fewer laws regarding analog image generation. But it's part of President Joe Biden's AI regulatory agenda, and White House press secretary Karine Jean-Pierre is calling on Congress to pass new laws in response to last week's Taylor Swift incident.
The "DEFIANCE" bill is specifically proposed for images generated by artificial intelligence, but it is not limited to these images. The bill deems as a fabrication any intimate sexual image (a term defined in the ground rules) that appears to a reasonable person to be indistinguishable from an authentic visual depiction of an individual through "software, machine learning, artificial intelligence or any other computer-generated or technological means..." This includes authentic images that have been altered to be sexually suggestive. The phrasing seems to apply to older tools like Photoshop as well, as long as the results are realistic enough. Adding a label stating that an image is untrue does not absolve you of liability.
Lawmakers have introduced a number of bills targeting artificial intelligence and non-consensual pornography, but most have yet to pass. Earlier this month, lawmakers introduced the NoAIFRAUDAct Act, an extremely broad ban on using technology to impersonate others without permission. However, a one-size-fits-all parody rule would raise huge problems for artistic expression; it could open up the possibility of lawsuits from powerful figures over political parody, reenactment, or creative fictional treatment.
DEFIANCE may raise some of the same issues, but it's far more restrictive -- though it still faces an uphill battle to pass.