Stephanie Hansen

PHOTO COURTESY OF legis.delaware.gov

Bryan Townsend

PHOTO COURTESY OF legis.delaware.gov

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By Logan B. Anderson

DOVER — During the final days of the 152nd session of the Delaware General Assembly, lawmakers took on the changing field of artificial intelligence and deepfakes with a trio of measures.

According to The Merriam-Webster Dictionary, a deepfake is an image or recording that has been convincingly altered and manipulated to misrepresent someone as doing or saying something that was not actually done or said.

“It’s been used to create realistic tracks of new songs by Elvis and Frank Sinatra, and to create telephone conversations between famous people that never happened. A version that I think most of us have seen before involves face swap technology, where the face or head of one person is swapped on to the body of another person,” said Sen. Stephanie Hansen, D-Middletown.

“The leap from there to more sinister uses is not hard to imagine. And, indeed, it’s already here.”

Sen. Hansen sponsored House Bill 353 in the Senate. The act provides civil and criminal remedies for the wrongful disclosure of deepfakes that depict individuals in the nude or engaging in sexual conduct.

It also provides that, when an adult creates a visual depiction of a minor that is nude or engaging in sexual conduct, the adult would be subject to a felony prosecution, rather than a misdemeanor crime.

Deepfake pornography has been used to make videos of celebrities like Scarlett Johansson, Kristen Bell and Taylor Swift, in which they appear to be committing lewd acts that never happened.

But famous individuals are not the only victims of deepfakes. In 2022, Delaware teen Amelia Kramer and her family found that out for themselves.

“Two years ago, Amelia and her family received the knock on their door. It was a Delaware state trooper informing her and her family that her face had been added to pornographic images of others and then spread throughout the internet and on social media,” Sen. Hansen said from the Senate floor Thursday.

“She was just 15 years old. Police were able to determine who created and sent the images, but there were few options for criminal charges or even civil remedies because the law had not yet caught up with the technology. And, for Amelia, it became a living nightmare.”

HB 353, also called the “Amelia Kramer Act,” successfully passed both chambers of the legislature this spring and is awaiting action from Gov. John Carney.

Meantime, another sinister use of deepfakes and artificial intelligence is during election cycles.

Several instances of such technology being used to spread disinformation about candidates and elections have already been reported throughout the country.

According to Associated Press reports, before the New Hampshire primary in January, voters there received fake robocalls mimicking President Joe Biden’s voice and discouraging them from heading to the polls.

To curb similar issues in Delaware, House Substitute 1 for House Bill 316 would make distributing election-related deepfakes within 90 days of an election a class B misdemeanor. And politically motivated deepfakes intended to cause violence or bodily harm would be class A misdemeanors.

“The rapid advance of deepfakes and other digitally manipulated media should be of great concern to all Delawareans, who may find it increasingly difficult to distinguish between real sound and images, and fraudulent misrepresentations created with the help of artificial intelligence,” said Sen. Bryan Townsend, D-Newark, the Senate sponsor of the proposal.

He added that First Amendment rights are protected by the bill.

“Part of the conversation we had (is) there is the balancing of First Amendment rights and freedom of expression with regard to trying to make sure that deepfakes were not used in a way to manipulate and distort elections. Also worth noting (is) that parody is exempted from this, and again, that goes back to the point with regard to First Amendment concerns,” he said Thursday.

Following that discussion, the Senate gave its approval to the legislation and forwarded it to the House of Representatives, where members passed the measure Sunday. It now awaits the governor’s signature.

The passage of HB 353 and HB 316 came just days after both chambers unanimously approved House Bill 333, to create the Delaware Artificial Intelligence Commission, a body of experts and legislators who will prepare for ways that AI may impact employment, transportation, education and other facets of life.

It also is awaiting Gov. Carney’s signature.