Cyber harassment, especially involving AI-generated images like deepfakes, is a growing concern in today’s digital landscape. Deepfakes—manipulated videos or images that use artificial intelligence to create highly realistic but false representations—can be used maliciously to harass, defame, or violate the privacy of individuals. This has led to the development of various laws at the federal, state, and international levels to address cyber harassment, with specific focus on new challenges posed by AI-generated content.
Federal Laws on Cyber Harassment and Deepfakes in the United States
While the United States does not have a single, comprehensive federal law specifically addressing cyber harassment involving deepfakes, several existing federal laws can be applied to combat these issues:
1. The Stalking and Harassment Laws
- 18 U.S.C. § 2261A (Interstate Stalking): This law makes it a federal crime to engage in conduct that places a person in reasonable fear of death, serious bodily injury, or substantial emotional distress. It includes cyberstalking and can cover online harassment involving deepfakes if the conduct involves threats or causes significant emotional distress.
- 18 U.S.C. § 875(c) (Interstate Communications): This statute criminalizes the use of interstate communications (including the internet) to transmit any threats to injure the person of another. If deepfakes are used as a tool to threaten or intimidate someone, this law may apply.
2. Computer Fraud and Abuse Act (CFAA)
- 18 U.S.C. § 1030: The CFAA criminalizes unauthorized access to computers and data. If deepfakes or AI-generated images are created or disseminated using hacked or unlawfully obtained data, this law could provide grounds for prosecution.
3. Non-Consensual Pornography and Revenge Porn Laws
- Several states and federal circuits have enacted laws specifically targeting non-consensual pornography, which could include deepfakes created to depict someone in explicit content without their consent. For example:
- The SHIELD Act (Stopping Harmful Image Exploitation and Limiting Distribution Act of 2019): A proposed federal law that aims to criminalize the creation and distribution of non-consensual pornography, which would include deepfake pornography.
4. Intellectual Property Laws
- Copyright Infringement: If a deepfake uses copyrighted images or videos without authorization, the creator could be sued for copyright infringement under the Digital Millennium Copyright Act (DMCA). Victims can issue DMCA takedown notices to remove infringing content from platforms.
5. Fraud and Identity Theft Laws
- 18 U.S.C. § 1028A (Aggravated Identity Theft): If a deepfake is used to impersonate someone for fraudulent purposes—such as gaining financial benefits or accessing sensitive information—this law could apply.
State Laws on Cyber Harassment and Deepfakes
In addition to federal laws, many states have enacted their own statutes specifically targeting cyber harassment, non-consensual pornography, and deepfakes:
1. State Anti-Cyber Harassment Laws
- Many states have specific laws that address cyber harassment, cyberstalking, and online threats. These laws often prohibit a wide range of harassing behaviors, including threats, intimidation, and other forms of online abuse. Depending on the state, the definition of harassment can include the creation or distribution of deepfakes designed to cause harm.
- For example, California’s Cyberstalking Law (California Penal Code § 646.9) includes online behavior that is intended to cause fear or serious emotional distress. If deepfakes are created to harass or stalk someone, these laws could be used to prosecute the perpetrators.
2. Deepfake-Specific Laws
- Several states have enacted laws specifically targeting the use of deepfakes for malicious purposes:
- California’s Anti-Deepfake Law (AB 602 and AB 730): This law prohibits the use of deepfakes in election campaigns within 60 days of an election and allows victims of non-consensual deepfake pornography to sue for damages.
- Texas’ Deepfake Law (SB 751): Texas has criminalized the creation and distribution of deepfakes intended to harm, defraud, or otherwise injure another person.
3. Non-Consensual Pornography (Revenge Porn) Laws
- Nearly every state has enacted laws prohibiting non-consensual pornography. These laws criminalize the distribution of intimate images or videos without the consent of the depicted person. Because deepfakes can be used to create fake explicit content, these laws can apply when deepfakes are used for revenge porn or harassment.
Civil Remedies for Cyber Harassment Involving Deepfakes
Victims of cyber harassment involving deepfakes may also have several civil remedies available, such as:
1. Defamation Claims
- If a deepfake falsely depicts someone in a way that harms their reputation, they may be able to file a defamation lawsuit. To succeed, the plaintiff must prove that the content was false, defamatory, published to a third party, and resulted in harm.
2. Right of Publicity Claims
- Right of Publicity Laws protect individuals from unauthorized commercial use of their likeness. If a deepfake uses someone’s image or likeness without consent for commercial gain, the victim may have a right of publicity claim.
3. Intentional Infliction of Emotional Distress (IIED)
- If a deepfake is created or disseminated with the intention to cause severe emotional distress, the victim may sue for Intentional Infliction of Emotional Distress. This tort claim requires proving that the defendant’s conduct was extreme and outrageous and resulted in severe emotional distress to the plaintiff.
International Laws on Cyber Harassment and Deepfakes
Internationally, several countries have begun to develop regulations targeting cyber harassment and the misuse of AI-generated images:
1. European Union – General Data Protection Regulation (GDPR)
- The GDPR provides robust protections against the unauthorized use of personal data, including images. Individuals can request the removal of deepfakes that use their likeness without consent and can seek compensation for damages caused by such misuse.
2. United Kingdom – Malicious Communications Act 1988
- The Malicious Communications Act makes it illegal to send or distribute communications (including deepfakes) that are grossly offensive, threatening, or intended to cause distress or anxiety.
3. Australia – Enhancing Online Safety Act 2015
- The Enhancing Online Safety Act provides mechanisms for victims of cyber harassment to have harmful content removed and take legal action against the perpetrators. This could extend to deepfakes used for cyber harassment.
Challenges in Enforcing Laws Against Deepfakes
While there are various laws in place to address the misuse of AI-generated images and deepfakes, there are significant challenges in enforcement:
- Anonymity and Attribution: Perpetrators can create and distribute deepfakes anonymously, making it difficult to track down and hold them accountable.
- Jurisdictional Issues: The internet is global, but laws are local. Determining jurisdiction and applying local laws to international perpetrators is challenging.
- Technological Sophistication: As deepfake technology advances, distinguishing between real and fake content becomes harder, complicating both detection and prosecution efforts.
Conclusion
Cyber harassment laws provide some protection against the misuse of AI-generated images like deepfakes, but the legal landscape is still evolving. Victims have multiple avenues for seeking justice, including criminal prosecution, civil litigation, and reporting to online platforms. However, navigating these laws can be complex, and consulting with a legal expert specializing in internet law, privacy, and digital content removal—such as those at National Security Law Firm—is crucial for effectively addressing deepfake harassment and protecting your rights.
If you or someone you know is facing harassment involving deepfakes or other AI-generated content, contact us today for a consultation to explore your legal options and take action to protect your reputation and privacy.
