Don’t Believe Your Lying Eyes; Why Deepfakes Pose a Threat to the Justice System

In April, State Farm debuted a commercial on ESPN in which a sports analyst makes some wild predictions about 2020:

According to Forbes, “the commercial surprised, amused, and delighted viewers. What viewers should have felt, though, was deep concern.”

The video is a “deepfake” (from “deep learning” and “fake”), a technology which uses AI to manipulate videos to make it appear a person is saying something that he or she is not. It can also be used to create images of people who do not exist.

In the context of an insurance commercial, such technology is neutral; our personal feelings about State Farm aside, no one is harmed by this particular ad. But deepfakes have real world consequences and real world dangers. This type of video manipulation can ruin lives in any number of ways.

The most common use for deepfakes is sex

In 2019, the actress Bella Thorne was a victim of deepfake abuse, after her face was superimposed on another person’s body in a sexually explicit video. A study conducted by Deeptrace Labs, and reported on by Vox, “found that the vast majority of the subjects of these fake videos across the internet — a full 96 percent — are of women, mostly celebrities, whose images are being turned into sexual fantasies without their consent.” Deeptrace also reported that the number of deepfake videos grew by 84% from 2018 to 2019.

What happened to Bella Thorne is criminal, but it is hardly an exception to the rule. We have no way of knowing how many people may appear to be committing crimes, or acting in ways that are harmful or negligent. We don’t know how many people have been denied jobs, or lost out on opportunities, because of a deepfake video.

How deepfakes could affect the outcome of a trial, or a claim for benefits

As trial lawyers, we use all kinds of technology to build cases for our clients. For example, if a car accident is recorded by a security camera, we can show that video to support our client’s claim that he or she was hit by a car, or that the other driver was behaving negligently. Civil trial attorneys, criminal defense attorneys, and prosecutors alike rely on photo and video documentation to help build their cases.

But what if that video is faked? What if a security video shows a man assaulting a woman in a store, and a prosecutor uses that video as evidence to move forward with charges – but the video has replaced the actual perpetrator with another, innocent party? What happens if the deepfake isn’t discovered in time, and is then seen by a jury who votes to convict him?

Or imagine this: you are seriously injured on a worksite, and are entitled to workers’ compensation benefits. Perhaps you have become too ill to work, and you want to apply for Social Security Disability Insurance. When someone goes to review your claim, he or she finds a deepfake video of you appearing drunk at work, and deny your workers’ comp benefits – or deepfake photos of you hang gliding somewhere, and determines that you are not so ill nor injured that you can no longer work.

What protection does the justice system have against deepfakes?

Federal Rules of Evidence Rule 902.13 states:

Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

Videos meet this classification, but deepfakes may make it impossible for the “qualified person” to determine that the video was faked. As such, they can be certified and submitted into evidence without anyone being the wiser.

Deepfakes also create doubt about real evidence. Eyewitness testimony is not always reliable, but a video recording should be; it’s right there in front of you. As deepfakes proliferate, we can never be sure that what we’re seeing is real – and the implications of that are far more dangerous and wider reaching than we can anticipate.

At Plaxen Adler Muncy, P.A., we work to support and strengthen the civil justice system. Please contact us in Maryland if you have questions about your case: call 410-730-7737, or fill out our contact form.