Why an Election Deepfake Crackdown Is Raising Free Speech Concerns

[00:00:00] [SPEAKER_01]: Robert Half Research indicates 9 out of 10 hiring managers are having difficulty hiring. Robert Half is here to help. Our recruiting professionals utilize our proprietary AI to connect businesses with highly skilled talent. At Robert Half, we know talent. Visit roberthalf.com today.

[00:00:23] [SPEAKER_03]: Welcome to Tech News Briefing. It's Tuesday, October 8th. I'm Zoe Thomas for The Wall Street Journal.

[00:00:30] [SPEAKER_03]: Tensions between Android and iPhone users can run hot when it comes to text messaging. But Apple's iOS 18 software update could make the fight between blue and green bubbles a little less hostile. We'll tell you why.

[00:00:47] [SPEAKER_03]: And then, a host of apps and websites make it easy to generate digital clones of politicians and celebrities in seconds, using generative artificial intelligence.

[00:00:57] [SPEAKER_03]: The states are grappling with how to deal with the potentially harmful impacts these deep fakes could have on elections.

[00:01:04] [SPEAKER_03]: Our reporter Jacob Gershman will join us to talk about a California law aimed at tackling this and the challenges the law is facing in court.

[00:01:16] [SPEAKER_03]: But first, most Americans have iPhones.

[00:01:20] [SPEAKER_03]: iMessage is one big reason people stick with Apple's devices over Androids.

[00:01:26] [SPEAKER_03]: Who wants to be left out of group chats, unable to receive emoji reactions, or high-quality images over texts?

[00:01:33] [SPEAKER_03]: But Apple's iOS 18 software update supports rich communication services, or RCS.

[00:01:40] [SPEAKER_03]: It brings some familiar features that you may be used to with iMessage, WhatsApp, or Signal to text between Apple and non-Apple devices.

[00:01:49] [SPEAKER_03]: So your green bubble chats feel a little more like your blue bubble ones.

[00:01:54] [SPEAKER_03]: Here to tell us more is our personal tech columnist, Nicole Nguyen.

[00:01:58] [SPEAKER_03]: Nicole, you've been testing this out.

[00:02:00] [SPEAKER_03]: What are some of the improvements that you get if you're an iPhone user that's now going to have RCS?

[00:02:06] [SPEAKER_02]: Yes, so I live in a cross-platform household.

[00:02:10] [SPEAKER_02]: My husband has been a longtime Android user, and I am an iPhone user.

[00:02:14] [SPEAKER_02]: So we started using RCS as soon as iOS 18 came out.

[00:02:19] [SPEAKER_02]: And the good is that multimedia on this new standard text system is great.

[00:02:26] [SPEAKER_02]: Images come through high-quality.

[00:02:28] [SPEAKER_02]: You can send audio messages, although those recordings are not transcribed like iMessage.

[00:02:33] [SPEAKER_02]: Group chats have improved also.

[00:02:35] [SPEAKER_02]: You can leave a group chat or enter one without it breaking off into a separate thread.

[00:02:41] [SPEAKER_02]: So there are lots of ways in which RCS behaves more like a third-party chat app.

[00:02:46] [SPEAKER_02]: You can also send these messages over Wi-Fi.

[00:02:48] [SPEAKER_02]: But there are also some pitfalls.

[00:02:51] [SPEAKER_02]: For example, inline replies are very useful when there's a busy conversation.

[00:02:58] [SPEAKER_02]: You can basically respond to a specific message, and there's like a little annotation that shows you're responding to this specific message.

[00:03:05] [SPEAKER_02]: This experience is completely broken in RCS.

[00:03:08] [SPEAKER_02]: Yes, both the Messages app on iPhones and the Google Messages app on Android phones allows you, for some reason, to inline reply.

[00:03:19] [SPEAKER_02]: But it will not attach the reply you send to the original message at all.

[00:03:25] [SPEAKER_02]: There are also no emoji reactions for images.

[00:03:28] [SPEAKER_02]: And lastly, there's no encryption.

[00:03:30] [SPEAKER_02]: So iMessage is fully encrypted end-to-end.

[00:03:34] [SPEAKER_02]: Android to Android RCS messaging is also encrypted.

[00:03:37] [SPEAKER_02]: Android to iPhone messaging is not.

[00:03:40] [SPEAKER_02]: Encryption is important because it shields your message until the message arrives at your recipient's device.

[00:03:48] [SPEAKER_02]: That means that your carrier, law enforcement, or a malicious man-in-the-middle attacker cannot view this message.

[00:03:56] [SPEAKER_02]: And it's not encrypted, and Google and Apple have to work together in order to make that happen.

[00:04:01] [SPEAKER_03]: And are they doing that?

[00:04:03] [SPEAKER_02]: They both say that they are.

[00:04:05] [SPEAKER_02]: A collaboration between these two competitors is not unheard of.

[00:04:09] [SPEAKER_02]: They partnered last year to address unwanted location tracking via AirTags and other location finders that are Android compatible.

[00:04:16] [SPEAKER_02]: So it's possible, but we do not have a timeline.

[00:04:20] [SPEAKER_02]: So I am cautiously optimistic.

[00:04:23] [SPEAKER_03]: Why is Apple introducing RCS messaging now?

[00:04:28] [SPEAKER_02]: I have two theories.

[00:04:30] [SPEAKER_02]: One is that Apple has been under a lot of regulatory fire.

[00:04:35] [SPEAKER_02]: Last year, I wrote about my husband Will's attempt to infiltrate my family iMessage chat.

[00:04:41] [SPEAKER_02]: And he did it via a workaround called Beeper Mini.

[00:04:44] [SPEAKER_02]: And when Apple blocked Beeper Mini from allowing Android users into iMessage, some regulators were interested.

[00:04:51] [SPEAKER_02]: They were like, is this anti-competitive?

[00:04:54] [SPEAKER_02]: Second, WhatsApp in particular, which is a chat app owned by Meta, has grown a lot in the US.

[00:05:01] [SPEAKER_02]: Mark Zuckerberg announced that it had reached something like 100 million monthly active users.

[00:05:06] [SPEAKER_02]: And over 50% of those are on iPhones.

[00:05:10] [SPEAKER_02]: For Apple to get its users to stay in its messages app and not go elsewhere for messaging where it doesn't matter whether you have an iPhone or not.

[00:05:19] [SPEAKER_02]: It has to improve green bubbles, too.

[00:05:21] [SPEAKER_02]: And RCS does that.

[00:05:23] [SPEAKER_03]: All right.

[00:05:24] [SPEAKER_03]: That was our personal tech columnist, Nicole Nguyen.

[00:05:26] [SPEAKER_03]: Coming up, a California law aimed at cracking down on election deepfakes faces challenges in court.

[00:05:33] [SPEAKER_03]: We'll tell you about the arguments after the break.

[00:05:42] [SPEAKER_01]: Robert Half Research indicates 9 out of 10 hiring managers are having difficulty hiring.

[00:05:49] [SPEAKER_01]: Robert Half is here to help.

[00:05:51] [SPEAKER_01]: Our recruiting professionals utilize our proprietary AI to connect businesses with highly skilled talent.

[00:05:57] [SPEAKER_01]: At Robert Half, we know talent.

[00:06:00] [SPEAKER_01]: Visit roberthalf.com today.

[00:06:07] [SPEAKER_03]: California's new anti-deepfake statute, which Governor Gavin Newsom signed into law last month, takes aim at AI-generated election-related content.

[00:06:17] [SPEAKER_03]: Opponents say the law is a violation of the First Amendment.

[00:06:22] [SPEAKER_03]: At least two separate lawsuits have been filed.

[00:06:25] [SPEAKER_03]: One by a conservative YouTuber known as Mr. Reagan.

[00:06:28] [SPEAKER_03]: He posted a deepfake video over the summer mimicking a Kamala Harris ad.

[00:06:33] [SPEAKER_03]: It used an AI-generated fake of Vice President Harris' voice.

[00:06:37] [SPEAKER_03]: The video went viral after being touted by Elon Musk.

[00:06:41] [SPEAKER_03]: A Harris campaign spokesman didn't respond to a request for comment.

[00:06:45] [SPEAKER_03]: Another suit, brought by the satirical news site The Babylon Bee, also challenges California's law.

[00:06:52] [SPEAKER_03]: A federal judge has blocked the state from enforcing most of the law,

[00:06:56] [SPEAKER_03]: but California and other states argue they need ways to protect elections from possible interference created by deepfakes.

[00:07:04] [SPEAKER_03]: Here's our reporter, Jacob Gershman.

[00:07:07] [SPEAKER_03]: So Jacob, tell us about this California law related to deepfakes.

[00:07:12] [SPEAKER_00]: California is not the only state that has passed legislation restricting deepfakes that are pertaining to elections,

[00:07:20] [SPEAKER_00]: pertaining to political candidates.

[00:07:22] [SPEAKER_00]: About 20 states have passed or enacted deepfake laws, mostly in the last year.

[00:07:28] [SPEAKER_00]: What makes California's legislation different is that it basically puts the person who sends a deepfake,

[00:07:36] [SPEAKER_00]: it sets them up for a lawsuit against them much more easily.

[00:07:40] [SPEAKER_00]: Anybody who views what they distribute would be authorized to seek injunctive relief in court,

[00:07:46] [SPEAKER_00]: to try to get a court to say, you can't post this, to get it taken down,

[00:07:51] [SPEAKER_00]: or to seek damages against the person who distributed it.

[00:07:55] [SPEAKER_00]: It wouldn't hold the social media site that hosted it liable generally,

[00:08:00] [SPEAKER_00]: but the person who posted it there could easily face a lawsuit if it's deemed to be,

[00:08:06] [SPEAKER_00]: what they say, materially deceptive content about a political candidate,

[00:08:11] [SPEAKER_00]: or about an election official or a voting site.

[00:08:16] [SPEAKER_00]: That means basically posting something that looks real, but is actually fake about those subjects.

[00:08:23] [SPEAKER_00]: Those are the parameters of the law.

[00:08:24] [SPEAKER_00]: And if it were in effect, it would be enforced 120 days leading up to an election and some weeks also afterward.

[00:08:32] [SPEAKER_03]: Where do things stand with California's law now because of these challenges to it?

[00:08:37] [SPEAKER_00]: So right now, this restriction on deepfakes is put on hold.

[00:08:41] [SPEAKER_00]: The state can't enforce it.

[00:08:43] [SPEAKER_00]: The next stage will be an appeal of that injunction, and we'll see where it goes from there.

[00:08:48] [SPEAKER_00]: It's not going to be easy to overturn the injunction,

[00:08:50] [SPEAKER_00]: and it is basically a sign that the judge who's looking at it right now doesn't think it's constitutional.

[00:08:57] [SPEAKER_03]: Other states have created deepfake laws.

[00:09:00] [SPEAKER_03]: How do those compare to California's?

[00:09:03] [SPEAKER_00]: One common feature they have is a disclosure requirement.

[00:09:06] [SPEAKER_00]: The idea that if you're going to post a deepfake,

[00:09:09] [SPEAKER_00]: you should let the people looking at it know that this is not real.

[00:09:14] [SPEAKER_00]: The disclosure requirements vary.

[00:09:16] [SPEAKER_00]: The one in California, there was a criticism from one of the plaintiffs

[00:09:20] [SPEAKER_00]: that it would basically obstruct the entire screen,

[00:09:23] [SPEAKER_00]: that the disclaimer had to be so large in the video that you couldn't see the rest of the video.

[00:09:28] [SPEAKER_00]: Some other states have created new criminal laws related to election deepfakes.

[00:09:35] [SPEAKER_00]: One interesting feature, though, is that states do have on the books ways of going after this kind of trickery.

[00:09:44] [SPEAKER_00]: You have defamation laws.

[00:09:46] [SPEAKER_00]: You also have laws that make it a crime to intentionally try to suppress voters or to impersonate a candidate.

[00:09:54] [SPEAKER_00]: You have laws, obviously, against fraud.

[00:09:57] [SPEAKER_00]: So there are legal tools that can be wielded against the most pernicious of deepfake posters.

[00:10:05] [SPEAKER_03]: We have seen felony charges brought, though, against a Louisiana political consultant for robocalls,

[00:10:11] [SPEAKER_03]: which used deepfakes of President Biden.

[00:10:13] [SPEAKER_03]: How does that fit into sort of the environment of governments trying to restrict this sort of technology?

[00:10:20] [SPEAKER_00]: Well, that's a good example of a state using existing law to go after a perpetrator of this newfangled technology.

[00:10:29] [SPEAKER_00]: And New Hampshire charged this Louisiana political consultant who allegedly organized this fake Biden robocall in New Hampshire,

[00:10:38] [SPEAKER_00]: they charged him with felony and misdemeanor counts of voter suppression and impersonating a political candidate.

[00:10:44] [SPEAKER_00]: Those were not laws that were offenses that were established in response to, you know, the concerns about deepfakes.

[00:10:51] [SPEAKER_00]: Those were already on the books.

[00:10:53] [SPEAKER_00]: It does indicate that you don't necessarily need these new laws like what California passed to go after the worst violators.

[00:11:02] [SPEAKER_03]: And what is the legal precedent for this situation?

[00:11:04] [SPEAKER_00]: Generally, courts are very wary of setting limits on false and political speech.

[00:11:09] [SPEAKER_00]: We saw that in the 2012 Stolen Valor case.

[00:11:13] [SPEAKER_00]: That was this First Amendment case at the Supreme Court where justices struck down the 2006 Federal Stolen Valor Act,

[00:11:20] [SPEAKER_00]: which made a crime to falsely claim to have been awarded military medals.

[00:11:24] [SPEAKER_00]: You've also seen federal appeals courts strike down laws that prohibit spreading false information about a political candidate.

[00:11:32] [SPEAKER_00]: So, all in all, we can expect that California is going to face an uphill battle in the courts.

[00:11:38] [SPEAKER_00]: We don't know how courts are going to exactly deal with this new technology,

[00:11:42] [SPEAKER_00]: but the First Amendment is going to be a pretty strong, big obstacle in the way of these kinds of laws.

[00:11:48] [SPEAKER_03]: That was our reporter, Jacob Gershman.

[00:11:50] [SPEAKER_03]: And that's it for Tech News Briefing.

[00:11:52] [SPEAKER_03]: Today's show was produced by Julie Chang with Deputy Editor Scott Salloway.

[00:11:57] [SPEAKER_03]: I'm Zoe Thomas for The Wall Street Journal.

[00:11:59] [SPEAKER_03]: We'll be back this afternoon with TNB Tech Minute.

[00:12:02] [SPEAKER_03]: Thanks for listening.