Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn's Next Tragic Act

52 Pages Posted: 18 Mar 2019 Last revised: 10 Feb 2020

Date Written: February 25, 2019

Abstract

This could happen to you: You have appeared in digital photographs. Your pictures aren’t sexually explicit or revealing — they just are pictures of your daily life: spending time with friends or your vacation selfies. Like millions of people, these images have likely made their way onto the Internet when you shared them on social media. But what if someone decides they don’t like you? With an app available on any smartphone, the digital images of your face can be easily clipped from the pictures you posted the Internet and pasted onto the body of a person engaged in sexually explicit acts. Without your knowledge or consent, you become the “star” of a realistic, pornographic “deepfake.”

This hypothetical reflects an emerging phenomenon in sex exploitation cybercrimes — it is the next tragic act in the unauthorized public dissemination of private sexually explicit photos or videos, known as “revenge porn.” What, if anything, can you do if you are inserted into a pornographic deepfake image or video against your will? Is it against the law to create, share, and spread falsified pornography on the Internet? At best, the answer to these questions is complicated and uncertain, and at worst, the answer is — no. Although the most effective deterrent for bad actors is one that criminalizes their behavior, there are currently no federal or state laws that criminalize the creation or distribution of pornographic deepfakes. And since deepfakes exist in cyberspace, they are not confined to an individual state jurisdiction. This is the first article to focus on the intersection of the law and pornographic deepfakes and to propose a legislative solution to the harms they unleash. A national response rooted in federal criminal law is required because everyone, everywhere is a potential deepfake victim — even you.

Keywords: Deepfakes, Deep Fakes, Nonconsensual Pornography, Revenge Porn, Criminal Law, Federal Criminal Law, Pornographic Deepfakes, Face-Swap, Face Swapping, Artificial Intelligence, Internet

Suggested Citation

Delfino, Rebecca, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn's Next Tragic Act (February 25, 2019). 88 Fordham L. Rev. Vol. 887 (December 2019); Loyola Law School, Los Angeles Legal Studies Research Paper No. 2019-08. Available at SSRN: https://ssrn.com/abstract=3341593 or http://dx.doi.org/10.2139/ssrn.3341593

Rebecca Delfino (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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