The topic of "deep fakes" is back in the news recently, right here in Florida. Readers will remember that "deep fakes" have been in the news. The term refers to any time something is forged, whether it be someone's voice, image, etc. There have been newsworthy instances of See AI is a Tool (October 2023). that post introduced some youngsters in a "sleepy little town in Spain." They were accused of creating photos of their classmates using a computer, lurid photos, and sharing them online.
I noted there that the Spanish instances were not someone's face pasted onto another's body. That technology has apparently been a thing since the advent of computer images and various programs capable of manipulating them. No, these were created by AI, with the computer apparently analyzing clothed individuals and hypothesizing about how they might appear unclothed. A critical point, however, is that they were real people. Critical point two is that they were shared online.
That story had multiple levels of intrigue and trouble. First, cyberbullying (and bullying) can be accomplished without such tools. Anyone can be belittled, threatened, minimized, or worse either in person or online. The only difference between cyberbullying and in-person bullying is perhaps the imminent potential for physicality in person. Bullying is present on the internet, in the schoolyard, and in the workplace.
See Bullying is in the News, is it in the Workplace (November 2013); Aggressive without Being Obnoxious (August 2019); A Miserable Example (February 2022). Bullying can come in many forms, from almost any source.
The perception seems to be that bullying is increasing, at least online. Mental health experts contend that bullying is foundational to various challenges to mental health. The McGovern School of Medicine informs:
"Bullying can cause feelings of rejection, exclusion, isolation, low self-esteem, and some individuals can develop depression and anxiety as a result."
The news from Florida is from Wired. It reports that two middle school south-Florida gentlemen, "aged 13 and 14," have been arrested for "alleged sharing of AI-generated nude images." These are felony charges, and thus the newsworthiness of the story. There is also attention drawn by novelty here, in the fact that the law allegedly violated was only passed in 2022. It appears these two young gentlemen are the first ever charged under its authority.
Of course, anything AI is newsworthy. But this appears to be a more "cut and paste" effort of putting images of people's faces onto images of other people's torsos. The implication is that this is similar to more familiar Photoshop manipulation but with the help of AI. Unfortunately, the alleged incident is not unique. The story reports there have reportedly been similar news stories in Washington, California, and New Jersey. But, there have apparently been no arrests until now.
The South Florida gentlemen were identified in early December and arrested days before Christmas. The story recounts that a school administrator who learned of the allegations "interviewed the victims depicted in" the photos, and learned "they did not consent to the images being created." That seems, at first glance, to be a curious inquiry.
The images were allegedly of middle school students. One might instantly leap to the fact that those people are 12 to 14 years old, and incapable of consent in its basic sense. To what end would consent be of any import? But then one progresses to considering that the unclothed torso photographs were not of minors, only the faces that were affixed to them. In the strictest sense, perhaps the photos could be viewed as only partially of youth.
In that, there is the potential that a court might conclude that such photographs are not actionable under various other laws. And that is where the 2022 law under which the South Florida gentlemen are charged becomes critical. That was CS/CS/SB 1798 (readers will recall that such a name means there were two "committee substitutes" (CS) for the original bill as that Senate Bill (SB) progressed to passage). This illustrates that there was likely spirited debate and various significant amendments as the law was considered and passed.
It created section 836.13, Fla.Stat. which provides for felony punishment:
"(2) A person who willfully and maliciously promotes any altered sexual depiction of an identifiable person, without the consent of the identifiable person, and who knows or reasonably should have known that such visual depiction was an altered sexual depiction, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."
And thus, the rationale for exploring consent becomes obvious. The statute specifically requires that any actionable event would be "without the consent," and that the individual victimized must be an "identifiable person."
The law specifically defines what "altered sexual depiction" means:
"(1)(a) “Altered sexual depiction” means any visual depiction that, as a result of any type of digital, electronic, mechanical, or other modification, alteration, or adaptation, depicts a realistic version of an identifiable person:1. With the nude body parts of another person as the nude body parts of the identifiable person;2. With computer-generated nude body parts as the nude body parts of the identifiable person; or3. Engaging in sexual conduct as defined in s. 847.001 in which the identifiable person did not engage."
There are a variety of other definitions and descriptions in the statute. Notably, this is not an "AI statute." The prohibitions are focused on "any type," and broadly address the cut-and-paste ("mechanical") to the Photoshop ("digital"), and beyond ("other modification"). It is a seemingly all-encompassing prohibition. While it addresses "cut and paste" in the present instance, one can readily see it applied as easily to efforts such as the Spanish example above. The statute is a worthwhile effort to prevent the bullying of people young and old. The scope is broad.
This is noteworthy because our focus must remain on the fact that AI is a Tool. There is too much inclination today to focus upon what AI can do, and how humans may misuse it. Legislation could be brought to bear on AI, on the tool.
But, as this statute and the purported prosecution of the South Florida gentlemen illustrate, the law can address action (or inaction) in a broad sense. The potential use of the tool can be addressed in the law as part of a broader affront to a problem or challenge, regardless of whether AI or scissors and paste are the tools used. In this, we see again that AI is not the threat. The behavior is the threat. AI is merely a means to the end.
For the young gentlemen in this instance, there are likely difficult times ahead. Wired reports that the "parents of the victims" are "publicly urging the school to expel the boys." That may sound to some like a bit of an affront to the "innocent until proven guilty" to which we have so long adhered. That said, the press has long been a court in which trials have occurred without any of the formalities or protections of such vaunted concepts as due process, equal protection, or assistance of counsel. That is a topic for another day.
The charges under this statute could lead to conviction of "a felony of the third degree." That is significant. As Wired notes, this is the same potential punishment that one might face for crimes like "grand theft auto or false imprisonment." It is fair to say that section 836.13, Fla.Stat. reflects a dim view of the creation and promotion of these fakes.
It reflects that such photographs represent an affront to those depicted, a victimization. There is at least an implied admission that such depiction presents harm, which is consistent with the consensus of the emotional affront and potential for depression, anxiety, and more from such attacks. In the broadest sense, society's primary goal has to be the protection of youth. They are, after all, our future. This statute seemingly contributes to that protection, but while it includes youth it protects more.
The prosecution or other conclusion of these allegations in South Florida will be newsworthy. The application of this statute will not change AI or Photoshop. Perhaps, however, it will change the inclinations of humans who utilize such tools? And in the process, perhaps it will prevent untoward and unconscionable bullying of students, coworkers, and people generally.
