By Howard Fischer
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PHOENIX — Unable to stop “deep fakes” in politics, state lawmakers are settling on the next best thing: requiring that viewers and listeners be told what they are seeing is not real.

Legislation awaiting a final Senate vote spells out that anyone who distributes a “synthetic media message” purporting to show a candidate within 90 days of an election must include a “clear and conspicuous disclosure” the media includes content generated by artificial intelligence.

That message also would need to remain on the screen for the duration of the video.

If it’s an audio message, there would have to be something read. And the proposal by Sen. Frank Carroll, R-Sun City West, is designed to ensure this isn’t delivered by some fast-talking announcer, with the requirement that it be “in a clearly spoken manner and in a pitch that can be easily heard by the average listener” — and at the beginning, the end and, if the audio is longer, then every two minutes throughout.

The measure carries fines for first-time offenders — and prison time for those who repeat.

What’s driving the bill is the fact that it’s already happening.

Some of that has been in the criminal sphere, like someone faking the voice of a child to get a parent to pay ransom.

That’s being addressed by Sen. John Kavanagh, R-Fountain Hills, with his Senate Bill 1078.

It would make it a felony to use a computer-generated voice recording, image or video of another person with intent to defraud or harass others.

That measure, too, awaits a final Senate vote.

Senate Bill 1359 takes a narrower approach.

“In this case here, we’re talking about election integrity,” said Carroll. “If someone can be given the appearance as a candidate in office, and they can make statements that are not the statements of the candidate, present themselves otherwise, that is a problem right there.”

It has happened already in New Hampshire where a recorded message was sent to voters ahead of the January primary with someone who sounds like Joe Biden telling listeners not to vote but “save your vote for the November election.”

The regulatory approach appears to be designed to avoid running into First Amendment problems.

In 2012 the U.S. Supreme Court overturned the federal Stolen Valor Act that made it a crime to make false statements about having military honors. The court concluded that the fact that the statement was false did not remove its constitutional protections.

What that leaves is disclosure.

“I just have to reiterate and overemphasize that this is about election integrity,” he told colleagues. “You can thwart an election by an impostor speaking as if they’re the actual candidate.”

SB 1359 has a combination of disclosure and criminal penalties.

Creators would be subject to a Class 1 misdemeanor — something that can carry six months in county jail but generally results only in a fine — for failing to make the proper disclosure. But a second conviction within five years would be a Class 4 felony which carries a presumptive sentence of 2.5 years in state prison.

That bothered Sen. Priya Sundareshan.

“The bill is needed,” the Tucson Democrat said. “This is a scary time for anyone who is a candidate and who could potentially be out there and perceived to be saying things that they didn’t say.”

“Of course, I want there to be compliance with the law,” she said. “I want to figure out how do we achieve that.”

Sundareshan, however, called the felony “kind of extreme.”

Carroll disagreed, saying the penalty for a repeat offender is merited.

“This is serious,” he said. “The impact of this, if it is successful, could change the outcome of an election in a most awful way.”
Sundareshan had another concern.

As originally crafted, SB 1359 and its disclosure requirements and penalties applied not just to the person or entity that created it but also to any other entity involved in its distribution. Carroll had that language removed when the measure was debated in the Senate.

The question, he said, is having to prove whether someone who posts a deep fake actually bears some liability or simply put it out there unaware of its falsity. Carroll said he wants the focus to be on who created the deep fake and who paid for it.

“And that’s what the target should be,” he said.

Sundareshan said that makes sense. But she said there may be situations where it’s difficult to figure out who is the original creator.

“Maybe it’s coming from Russia,” Sundareshan said. What the bill does in limiting liability, she said, is allow the deep fake to continue to be used by others “even though the people who are using it might very well know it’s a fake.”

And what that would do, said Sundareshan, is simply let people continue to use those fakes by saying they weren’t the ones who created it.
Carroll said something that’s created overseas may be beyond the reach of Arizona law and be an issue of foreign relations.

“And that’s a whole area unto itself,” he said.

“Your point about foreign actors is well taken,” Carroll told Sundareshan. “Hopefully we don’t have to go into war over it.”

There’s another measure making its way through the Legislature to deal with deep fakes in political situations, this one without any criminal penalties.

House Bill 2394 would allow a candidate to go to court and get a quick ruling that what they are seeing or hearing isn’t really them.

The proposal by Rep. Alexander Kolodin, R-Scottsdale, would not allow a judge to actually order a deep fake of a candidate to be removed from wherever it is posted. Nor would there be any sanctions against those who create or post themselves.

But Kolodin said a court order then would allow the candidate to have a judicial declaration that the item is a fake.

His measure already has been approved unanimously by the House and awaits Senate action.

Correction: This story has been changed to reflect a difference in penalties that the bill would recommend for first-time offenders.