Journal of National Security Law & Policy








Deepfakes – computer generated counterfeit videos and audios of people saying and doing things they never said or did – are proliferating on social media and increasingly will be used to target candidates in elections. Citizens United v. FEC, and cases decided in its aftermath, have opened the floodgates of dark money funded electioneering communications, and some of this money will be spent on deepfakes made and disseminated by persons unknown. Some deepfakes may originate outside the United States, as they become a new instrument for foreign interference in U.S. elections.

The Federal Election Commission (FEC) has been asked by public interest organizations and members of Congress to do something about deepfakes but has deadlocked on whether to act. Bills are pending in Congress to address the problem, but some of these bills are overbroad and rely on criminal sanctions, exacerbating constitutional problems. No bill addressing deepfakes in elections has passed either house.

Dark money in politics, foreign interference in U.S. elections, and the rise of AI-generated deepfake political ads will become an issue of increasing concern. And, with Congress and the FEC currently deadlocked on pending legislation that could address the problem, the future of U.S. elections remains in jeopardy. However, steps can be taken now to circumvent government inaction. Deepfake political ads could be flagged by publicly or privately funded Deepfake Warnings with a FEC sponsored Deepfake Alert System that could respond quickly to deepfake electioneering communications by identifying them as such in the same social media platforms where they emerge, and other media platforms as well. Enforcement of new regulations prohibiting deepfakes in elections will be hampered by practical and constitutional problems, whereas public and private investment in timely public education about fake video and audio recordings could help reorient voters back toward the real world.

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