On February 16, 2018, the Justice Department issued an indictment charging the Internet Research Agency, a Russian organization employing hundreds of individuals and having a budget over a million dollars, and thirteen individuals with trying to influence the 2016 election. The organization allegedly studied audience engagement with social media posts and then posed as individuals and groups (such as @TEN_GOP which had over 100,000 followers) to affect votes in battleground states. These allegations demonstrate the growing threat that fake news poses to democracy.

We are just now beginning to discover the potential capabilities of social media. For example, Facebook was able to increase voter turnout by 340,000 in 2012 by adding an “I voted” button to its page. While this powerful influence on public behavior is good news for social media companies looking to generate advertising revenue, this amount of control could be very dangerous if unregulated. Human susceptibility to social media influence is even more disturbing when considering that technology in the areas of artificial intelligence and content creation is advancing rapidly.

Some notable recent innovations are in the space of video and audio editing. Researchers at Stanford recently developed technology that can in real-time map a source subject’s facial movements onto a target video clip of a celebrity’s head to modify their facial movements. Thus, a user could quickly and cheaply make amazingly realistic fake videos. Similarly, Adobe is about to release audio editing software that allows a user to create completely fake voice audio by deconstructing recorded speech into phonemes which can then be reconstructed into whatever statement you want the voice to say.

Fake videos and audio will create new possibilities for people attempting to manipulate the public through social media influence. These lifelike video and audio may be more convincing and more difficult to detect. Even subtle changes to real videos may convey a completely different message.  Humans have always been prone to believe in conspiracy theories and increased false evidence may only exacerbate this problem. The question then becomes whether there is there anything that can be done to deter people from using these technologies for the wrong reason.

Finding liability for textual fake news through libel is limited by First Amendment. For video and audio fake news, the impersonated individuals may have claims through the right to publicity. This state law property right existing in twenty-two states protects someone’s name and likeness to various degrees. However, the plaintiffs in these cases are typically celebrities, so it is unknown whether the publicity right case law can support claims in all of the situations that may arise when fake videos of Facebook friends can be produced quickly and cheaply.

How much freedom should people have to produce fake material with the intent to influence the public through deception? Even if the law forbid these creations completely, the current anonymity available on the internet could make catching the violators nearly impossible. In light of the recent attack, America needs to explore liability and enforcement solutions to protect the integrity of future elections.

Joseph Dorris

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