Neil I. Patel

And that is a very complicated argument in that case. But the idea that you should be in total control of any photo of you, I think a lot of people just instinctively believe that. And I think likeness law is what makes that have legal force. But you're saying, oh, there's some stuff here you wouldn't want to pull under that umbrella.

We have to take another quick break. We'll be right back.

We're back talking with Verge Policy Editor Addy Robertson about why it's really hard to limit either the creation or sharing of deepfakes. So that's the philosophical policy debate. You want to restrict this because in many cases it can be used to do very bad things.

There's some things that we absolutely want to forbid, but if we let that get too wide, we're going to start running into people's everyday speech. We're going to start running into absolutely constitutionally protected speech, like documentaries, like news reporting. That's pretty blurry. And I think the audience here, you should sit with that because that is pretty blurry.

On the flip side, there are two bills in Congress right now that purport to restrict on this stuff. There's something called the No Fakes Act, which is Chris Coons, Marsha Blackburn, Amy Klobuchar, Tom Tillis.

And then after the Taylor Swift situation on X, there's something called the Defiance Act, which stands for the Disrupt Explicit Forged Images and Non-Consensual Edits Act, which is quite a lot of words. Do they go towards solving the problem? Do you see differences there? Do you see them as being an effective approach?

That is the likeness law approach to it, which has big problems of its own. Another approach we've heard about on Decoder is rooted in defamation law. So Barack Obama was on Decoder. He said there are different rules for public figures than 13-year-old girls. We're going to treat them differently. We should have different rules for what you can do with a public figure than teenagers.

We should have different rules for what is clearly political commentary and satire versus cyberbullying. And then Senator Brian Schatz was recently on and he said something similar. Is defamation where this goes? Where it's, hey, you made a deep fake of me. Maybe it's my likeness. But you're actually defaming my character. And you did it on purpose.

And that rises to the level of you knowingly telling a lie about me. And defamation law is what's going to punish you for this instead of some law about my likeness.

One thing we constantly say here at The Verge is that copyright law is the only real law on the internet because it's the only speech regulation that everyone just kind of accepts. Defamation law is not a speech regulation that everyone just accepts. It has boundaries. The cases go back and forth. The idea that there should be a federal right to likeness doesn't even exist yet.

So that feels like it will be very controversial if it happens as a speech regulation. But at the heart of that is the First Amendment, right? People have such a strong belief in the First Amendment that saying the government should make a speech regulation, even if something is really bad, is an extraordinarily complicated and high barrier to cross. Do you see that changing in the context of AI?

We spent a lot of time talking about the visual side of it. We're going to make deep fake images. Those images have real world harms, especially to young people, especially young women in an election cycle, making it seem like Trump or Biden fell down the stairs could be very damaging. There's also the voice side of it, right? Where having Joe Biden do AI generated robocalls is a real problem. Uh,

or convincing people on TikTok that Trump said something he didn't say is a real problem. Do any of these laws address that aspect of it?

What about a fake Joe Biden, Joe Rogan podcast on TikTok?

All right. So we've arrived at what I would describe as existential crisis. Many, many problems. One set of things that should clearly be illegal, which deepfake nonconsensual pornography seems like it should clearly be legal. Everything else seems kind of up for grabs. How should people be thinking about these challenges as they go into this election year?

Thanks again to Verge Policy Editor Addie Robertson for joining us on Decoder. These issues are so challenging and she always helps me understand them so much more clearly. If you have thoughts about this episode or what you'd like to hear more of, you can email us at decoder at theverge.com. We really do read every email and we talk about them quite a bit.

You can also hit me up directly on threads on that reckless 1280. We also have a TikTok. It's a lot of fun. Check it out. It's at DecoderPod. If you like Decoder, please share it with your friends. Subscribe wherever you get your podcasts. If you really love the show, hit us with that five-star review. Decoder is a production of Verge and part of the Vox Media Podcast Network.

Today's episode was produced by Kate Cox and Nick Statt. It was edited by Callie Wright. The Decoder music is by Breakmaster Cylinder. We'll see you next time.