Deepfake 2024: Will Citizens United and Artificial Intelligence Together Destroy Representative Democracy?

Abstract

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 may originate outside the United States, as deepfake becomes 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 as to 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. This Article first summarizes the more general problem: unlimited and undisclosed dark money in politics, almost nonexistent legal remedies for foreign interference in U.S. elections, and the rise of AI generated deepfake video and audio. This Article then explores currently proposed regulatory remedies for deepfake in elections, none of which are sufficiently robust to address the problem effectively and, with deadlock in both the FEC and Congress, none of which are likely to become law. This Article then explores an alternative: publicly and privately funded Deepfake Warnings and 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 deepfake 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.