'21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security' by
Robert Chesney and Danielle Keats Citron in (2019) 78(4)
Maryland Law Review 882
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On February 1, 2019, the Maryland Law Review hosted a spectacular symposium entitled Truth Decay: Deep Fakes and the Implications for Privacy, National Security, and Democracy. The Law Review brought together scholars and advocates to discuss the deep-fake phenomenon and the looming challenges to privacy, civil liberties, national security, and civic trust. Before we begin our foreword to the symposium papers, we wanted to thank Executive Symposium Editor Meredith Storm, Editor-in-Chief Alexandra Botsaris, and Managing Editor Caroline Covington for their leadership, hard work, and enthusiasm.
Last spring, after telling them about our work on the topic, Meredith, Alexandra, and Caroline decided to dedicate the symposium to the deep-fake phenomenon. Of all of the cyber law issues grabbing headlines, from the loss of trust in social media companies to the daily drum beat of data breaches, they chose this topic. As the news from the weeks following the symposium showed, these women had foresight. We are grateful to the staff of the Law Review, especially Meredith, Alexandra, and Caroline, for having the vision, smarts, and devotion to bring together scholars with an array of perspectives to discuss the privacy, free expression, intellectual property, and national security
On the day before the symposium, U.S. Senator Angus King appeared on MSNBC to discuss President Donald J. Trump’s response to recent testi- mony by U.S. intelligence chiefs. Earlier that week, in public congressional testimony, Director of National Intelligence Dan Coats and Director of the Central Intelligence Agency Gina Haspel expressed their disagreement with the President’s policy toward Syria and ISIS. President Trump responded swiftly to the video. Rather than criticizing them, the President simply asserted that neither Coats nor Haspel had disagreed with him. President Trump said, in so many words, that it was all fake news—that the officials said they agreed with his policies. When the TV host asked for a reaction to the President’s response, Senator King remarked,
Well, this reminds me of the old country song, Chris, who you go- ing to believe, me or your own lying eyes? I mean, the testimony is there. I was there. I asked Gina Haspel very directly, is Iran in compliance with the nuclear agreement and she hemmed around a little bit but then she said yes it is. And that’s what their findings are.
The Senator was telling the hosts to watch the video of the proceedings to gauge the truth for themselves. In other words, videos do not lie.
Senator King’s response captures the belief in the truth-telling power of audio and video recordings. Even the United States Supreme Court has attested to this power: If a video shows someone driving recklessly, then that person drove recklessly. Period, the end, no discussion. Video and audio recordings elicit a visceral response. Human beings believe what their eyes and ears are telling them. Video and audio evidence become inscribed as truths about the world around us and stories embed quickly into memory. Although human beings may be able to dismiss gossip and rumors, especially if the gossip and rumors do not accord with their worldview, watching and
hearing video and audio recordings make it much more difficult to disregard the content.
Senator King’s remarks reflect human experience: We ascribe truth-telling powers to video and audio recordings. This response to digital imagery is exactly why deep-fake technologies are so powerful.
'The Upside of Deep Fakes' by Jessica Silbey and Woodrow Hartzog in the same issue
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It’s bad. We know. The dawn of “deep fakes”—convincing videos and images of people doing things they never did or said—puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims—even preposterous ones—can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polariza- tion.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic discourse and trust in social institutions, undermining public safety, national security, journalism, and diplomacy, deepening social divisions, and manipulation of elections. But it might not be all bad. Even beyond purported beneficial uses of deep-fake technology for education, art, and science, the looming deep-fake disaster might have a silver lining. Hear us out. We think deep fakes have an upside. xxx
Crucial to our argument is the idea that deep fakes don’t create new problems so much as make existing problems worse. Cracks in systems, frameworks, strategies, and institutions that have been leaking for years now threaten to spring open. Journalism, education, individual rights, democratic systems, and voting protocols have long been vulnerable. Deep fakes might just be the straw that breaks them. And therein lies opportunity for repair.
People have had good ideas about how to repair democratic institutions and frameworks for years. A leading example is the movement to overturn the Supreme Court decision Citizens United v. Federal Election Commission, which allowed corporations and nonprofits to raise and spend unlimited amounts of money to advocate for and against political candidates, giving rise to super PACs and, many say, the profound distortion of election politics. Another suggestion has been revamping education: making K-12 education less about standardized tests and more about cultivating a love of learning and making higher education more affordable without saddling college graduates with life-long debt. Often what’s been missingisthepolitical will to make them happen. Infrastructure isn’t a titillating political goal. Educators are continuously struggling for more funding. Voting reform is often too politically risky or costly to take on. Many of the harms to our basic institutions have been incremental as they seem destined to suffer death by a thousand cuts.
Perhaps these small incursions into our technologies and civic institutions haven’t been significant enough to foment a meaningful appetite for reform. Or perhaps lawmakers and the public simply can’t get angry about ephemeral and sometimes difficult to describe harms to concepts like due process, data integrity, and collective intelligence that are not felt viscerally. Sometimes we just need a push. And deep fakes make for a memorable bully.
That’s because deep fakes are lies. And not just lies, but ones that betray sight and sound, two of our most innate and cherished senses. Deep fakes call into question an entire lexicon of deeply held truths and axioms about the trustworthiness of what we see and hear with our own eyes and ears. “I’ll believe it when I see it.” “Out of sight, out of mind.” “A picture is worth a thousand words.”
The potential upside of deep fakes is that they might help muster the political will to address the larger, structural problems made worse by the inability to trust what we see and hear. In other words, maybe an effective way to respond to the scourge of deep fakes isn’t to target the creation and use of deep fakes themselves, but rather to focus on strengthening the social and political institutions they disrupt. Now would be a good time to focus on institutional inoculation, fortitude, redundancy, and resiliency. Deep fakes are a symptom of deep problems. Wouldn’t it be ironic if the symptom is scarier than the sickness and finally compels us to solve the underlying problems?
Below we briefly address some deep problems and how finally addressing them may also neutralize the destructive force of deep fakes. We only describe three cultural institutions – education, journalism, and representative democracy—with deep problems that could be strengthened as a response to deep fakes for greater societal gains. But we encourage readers to think up more. We have a hunch that once we harness the upside of deep fakes, we may unlock creative solutions to other sticky social and political problems.
