It appears progress is being made on a bill regarding deepfakes, and in particular pornographic deepfakes. AOC is going to co-sponsor it, so I'm especially hoping it will turn out well. However I looked at the Senate version here
https://www.congress.gov/bill/118th-congress/senate-bill/3696/text?s=1&r=11and I think there are some easily fixed problems whose improvement would not weaken the intent of the bill. I didn't go line by line but only skimmed this one, and didn't read the statutes this bill modifies so I'm going from context in this bill for that, but here's what I thought:
At first glance most of this is ok except for the lack of clear definition for proscribed intent [it utilizes the reckless disregard standard] and also by applying this standard to possession elements. This may open up a person who likes pornography but not necessarily deepfakes to unintentional exposure yet still be in reckless disregard through various avenues of interpretation.
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Later EDIT: So, this whole post was on this particular definition. I recalled it as being a low bar, but after posting I looked up Reckless Disregard a bit and it's possible I misremembered a court somewhere's use of the term or a similar one as being what seemed a bit more of a low bar than what may be applied here (I didn't find a clear explanation in searches), so there is a good chance I might be wrong. I'd have to drive two hours to use a law terminal at a college to do more than search internet though. Here is the best explanation I found, which differed from what I had thought initially.
"Usually, the person acting with reckless disregard knows that he or she is breaking the law and may possibly be endangering others. This test of “knowing” is usually based on what the courts think a reasonable person could have concluded in the situation about their actions. "
https://www.mylawquestions.com/what-is-reckless-disregard.htm It does have a reasonability component it appears, which can involve a matter of opinion. There may still be controversy arising from the reasonability component but in the positive seems like a higher bar to test reasonability at than some of my prior complaints about other bills, unless I am misremembering.
It's possible I was thinking of something like this definition for Reckless Disregard for the Truth, which does appear slightly lower:
https://www.merriam-webster.com/legal/reckless%20disregard%20of%20the%20truth-------
Anyways though, here's the rest of what I had initially posted. Keep in mind that it's likely I had been wrong about the intent standard being low, which is the whole point of the post, but I'm not sure:
I'd also worry (due to the low bar intent standard) that there appears to be ways to game the system at first glance. For example in a 3rd party providing deepfakes to the public, and then for the possession element (as well as the others, if I didn't misunderstand in my skim of the bill):
(3) RELIEF.—In a civil action filed under this section—
“(A) an identifiable individual may recover the actual damages sustained by the individual or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred; and
However that doesn't seem like it would be very extensive of a problem, and it's predicated on the intent standard remaining.
I think the first problem could be clarified by writing in a slightly stricter intent standard that clearly won't penalize accidental possession such as an unlabeled at the source deepfake that would appear to be otherwise acceptable speech. This is important because of it's inherent nature: I probably wouldn't recognize every single pop-star and politician and also because I don't know every pornstar yet, and it would be unfair to make an assumption that people who have put in far less effort would be able distinguish the three categories instinctively. Alternately, removing the possession portion of this bill and only leaving the intent to distribute portion may be simpler and save a ton of headaches later, but I think that suggestion perhaps does not fit the intent of the bill as much as the first suggestion did, which preserves penalties for possession.
EDIT: I've looked at some articles on Reckless Disregard after writing this, it seems like maybe I was misremembering a state version or similarly named standard somewhere as being more problematic.
