Proponents say the spread of disinformation via artificial intelligence threatens the democratic process.

In June, Florida Gov. Ron DeSantis’ presidential campaign disseminated deepfake images of former President Donald Trump hugging Dr. Anthony Fauci — something that never happened.

During the New Hampshire presidential primary in January, voters received fake robocalls depicting President Joe Biden encouraging people not to vote.

Alarmed that the proliferation of deepfakes created through artificial intelligence could influence the outcome of local elections, a conference committee in the Hawaii Legislature last week passed Senate Bill 2687.

Its passage by the full House and Senate this week seems likely. Only one lawmaker, Sen. Brenton Awa, has opposed the bill as it moved through the Legislature. If it is then signed by Gov. Josh Green, it would prohibit people from “recklessly” distributing materially deceptive media and make offenders subject to criminal penalties.

Sen. Karl Rhoads is the author of the Senate version of the deepfakes bill, which is set for final passage. (David Croxford/Civil Beat/2023)

The legislation also calls for setting up remedies for people who are injured by the distribution of deceptive material.

The law would take effect immediately, which means it would apply to the 2024 election cycle. The deadline for all approved bills to be addressed by the governor is July 10 — one month before Hawaii’s primary election.

Deepfakes are fabricated videos, images or audio manipulated with the help of artificial intelligence to show candidates doing or saying things that they never actually did or said.

SB 2687 comes as 2024 is already being widely described as the first “AI Election” in the U.S. It follows OpenAI’s launch of ChatGPT in late 2022, after the midterms had passed.

Kailua resident Dale Jensen rides up to drop off his general election ballot at Kailua District Park.
A bill to discourage political deepfakes would take effect for this year’s election cycle. (Cory Lum/Civil Beat/2020)

Dozens of states have introduced legislation to address the issue, and bills have already passed in Michigan, Minnesota and Washington state.

Hawaii is now poised to join those states and a half dozen others. The bill, authored by Sen. Karl Rhoads, notes that technology “can greatly benefit certain aspects of society” but can also have “dangerous consequences if applied maliciously.”

The spread of disinformation and misinformation, the bill states, “can increase political tensions and result in electoral-related conflict and violence.”

The legislation is supported by the Hawaii Campaign Spending Commission, the Hawaii State AFL-CIO and Public Citizen, a Washington. D.C.-based nonprofit consumer advocacy organization. Public Citizen testified that similar legislation in other states has had broad bipartisan support.

But SB 2687 encountered resistance from two prominent tech advocacy groups, TechNet and the Computer & Communications Industry Association.

Both offered support for the bill but insisted that it be amended so that it would not apply to broadcasters, cable operators, interactive computer services or streaming services — so long as the businesses were not involved in the creation of the deceptive media.

Violators of the law would be subject to a petty misdemeanor charge, but penalties would increase if subsequent violations occur.

The final draft of SB 2687, which was approved Thursday in conference committee, includes amended language to address those concerns.

Exceptions would be allowed if disclaimers that the video, images and audio have been manipulated are clearly included.

The deepfake prohibition would apply only from Feb. 1 of even-numbered years — election years — through the general election.

Violators of the law would be subject to a petty misdemeanor charge, but penalties would increase if subsequent violations occur. And if someone is determined to have intended to cause bodily harm with a deepfake, it could amount to a class C felony.

Candidates or organizations depicted in a deceptive campaign ad whose appearance, speech or conduct is altered or affected would be allowed to seek damages in court.

A court would also have the authority to issue a temporary or permanent restraining order to prevent further harm to the plaintiff. Violations of the order could result in fines as high as $1,000 a day.

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