The momentum to address nonconsensual sexually explicit AI deepfakes is building. On August 12, 2024, the Senate unanimously passed the Disrupt Explicit Forged Images and Non-Consensual Edits Act of 2024,” or the ‘‘DEFIANCE Act of 2024.” It awaits consideration by the House. (Meanwhile, the City of San Francisco brought a complaint this week against websites that enable the creation of deepfakes that can “undress” and “nudify” images especially of women and girls.)
Senator Dick Durbin’s summary of the DEFIANCE Act bill is below:
“The laws have not kept up with the spread of this abusive content. To stop the proliferation of
nonconsensual, sexually-explicit deepfakes, the DEFIANCE Act of 2024 creates a federal civil
remedy for victims who are identifiable in a “digital forgery,” which is defined as a visual
depiction created through the use of software, machine learning, artificial intelligence, or any
other computer-generated or technological means to falsely appear to be authentic.
“The civil remedy applies to digital forgeries that depict the victim in the nude, or engaged in
sexually-explicit conduct or sexual scenarios. The remedy is enforceable against individuals
who produced or possessed the forgery with intent to distribute it; or who produced, distributed, or received the forgery, if the individual knew or recklessly disregarded that the victim did not consent to the conduct.
“This bill creates a statute of limitations of 10 years (more than double the default statute of
limitations); tolls the running of the statute of limitations until the plaintiff learns about the
nonconsensual deepfake intimate image or they turn 18, whichever occurs later; and elaborates
on the privacy protections available to plaintiffs during the course of any litigation, particularly
with respect to the handling of discovery of the content at issue. These provisions would apply
both to existing law relating to nonconsensual disclosure of intimate images and the new cause
of action for nonconsensual deepfake intimate images.”
Relationship with existing federal law prohibiting nonconsensual intimate images under 15 U.S.C. 6851
The DEFIANCE Act would add a new category of prohibited material to 15 U.S.C. 6851 (which was enacted as a part of the 2022 Violence Against Women Act (VAWA) Reauthorization). In addition to the existing “intimate images,” the new prohibited category is “non-consensual activity involving digital forgeries.”
Hope to add some further thoughts after taking a closer look at this bill.