Mihailis Diamantis (University of Iowa – College of Law), Sean Sullivan (University of Iowa College of Law), & Eli Alshanetsky (Temple University) have posted Deep Fake Out on SSRN. Here is the abstract:
Deepfakes are visual and audio media that use artificial intelligence to portray people saying things they never said, doing things they never did, and experiencing events that never happened. They can be trivial (“Tom Cruise knows magic tricks?”), outlandish (“Why is Nancy Pelosi drunk on national television?”), or even dangerous (“Run, the Hollywood sign is burning!”). Because deepfakes can be both persuasive and pervasive, many commentators fear that humanity will soon take another step into the post-truth abyss.
This Article evaluates the threat deepfakes pose to truth by anticipating how they will impact the area of law most directly concerned with truth: the law of evidence. Deepfakes present an obvious challenge to the administration of justice in modern courtrooms, where audiovisual evidence plays an important role. Solutions offered in past legal scholarship—like relying on experts to identify deepfakes or criminalizing deepfake production—are superficial. They optimistically assume that deepfakes will always have a tell. To truly appreciate the threat deepfakes pose, the law must brace itself for the likely prospect of what this Article calls “deepest” fakes, which will be indistinguishable in every respect from authentic media.
Drawing on tools from philosophy, legal history, and technology studies, this Article demonstrates how evidence law can and likely will adapt to a world saturated with deepest fakes. Courts have long encountered the sort of philosophical skepticism that deepest fakes threaten today. In essence, the existence of deepest fakes reduces the truth value of digital media to the level of oral testimony, creative works, other easily falsifiable evidence. While deepest fakes do raise serious problems, trial procedure only needs to change if existing safeguards fail. This Article finds that deepest fakes present no different challenge for modern courts than oral testimony, paintings, and photographs presented for their early twentieth century counterparts. The safeguard then, as now, is a nuanced adversarial process that, refusing to take evidence at face value, probes each submission with contextual indicators of reliability. What emerges is an empowering picture in which human judgment, rather than blind trust in media of any sort, is the ultimate arbiter of truth.