Academic journal article American University Law Review

A Break from Reality: Modernizing Authentication Standards for Digital Video Evidence in the Era of Deepfakes

Academic journal article American University Law Review

A Break from Reality: Modernizing Authentication Standards for Digital Video Evidence in the Era of Deepfakes

Article excerpt

"[Rjeality is not external. Reality exists in the human mind, and nowhere else."

-George Orwell1

INTRODUCTION

Artificial intelligence and machine learning have enabled unprecedented leaps in mankind's capability to solve the most pressing issues of the twentyfirst century.2 Programmers and doctors have worked together to create artificially intelligent programs that synthesize data from millions of patients to diagnose illness with greater precision and speed than ever before.3 Soon, self-driving cars will relieve humans of the deadliest threat on our highways (ourselves).4 However, notwithstanding the tremendous promise of improvement that artificial intelligence brings to our world, future generations may someday remember December 2017 as a seminal moment of the digital age that exposed the danger of advanced technological capabilities. As an internet technology website, Motherboard, first reported with great despair, in December 2017, a Reddit user with the online handle "deepfakes" created a series of videos utilizing new techniques that grafted the faces of several wellknown actresses into pornographic videos.5 Reddit, along with several pornographic websites, quickly featured explicit videos in which Daisy Ridley, Gal Gadot, and other actresses had never actually appeared.6

The level of sophistication of this technology was still blossoming; Motherboard reported that " [i] t's not going to fool anyone who looks closely. Sometimes the face doesn't track correctly and there's an uncanny valley effect at play, but at a glance it seems believable."7 However, over the past several years, "deepfakes"-colloquially named after the otherwise unidentified Reddit user who circulated fake pornographic videos-have evolved from videos whose alterations are reasonably discernible by the naked eye to fakes that are challenging for both the human eye and machine detection software to distinguish from real videos.8 This progression is predominantly due to the advancement of processes for creating deepfakes that use machine learning programs to continuously improve the fidelity of the videos and render increasingly lifelike representations.9

The coming proliferation of deepfakes has created no shortage of alarms in the legal, political, and social spheres, in which scholars predict countless challenges to organized society, ranging from celebrity harassment to political and governmental manipulation.10 Some scholars have already rushed to address regulatory challenges that deepfakes pose and identify civil remedies for victims of deepfake videos.11 For example, many state privacy torts do not account for artificial rather than actual depictions of the victim,12 and First Amendment precedent is illequipped to deal with the expression of non-obscene but nonetheless manipulative fake videos.13 However, despite some recognition that fake video is an imminent threat to courtroom integrity, lawmakers have done little to address the manner in which our evidentiary standards for authenticating photographic and video evidence must adapt to counter this threat.14

This comment addresses the need for heightened evidentiary standards to counter the dangerous consequences of deepfakes, a need that is likely to become a central focus to our judicial process as prosecutors, plaintiffs, and defendants all turn to the courts to redress the threat and harms that deepfakes cause. courts currently rely on an evidentiary standard that assumes authenticating witnesses have sufficient personal knowledge to attest to a photograph's or video's authenticity;15 this standard is now inadequate to meet the intent of the Federal Rules of Evidence. Recent amendments to the Federal Rules of Evidence in 2017 aimed to address the growing influx of electronic media, such as social media posts or websites, into courtrooms.16 However, the 2017 amendments did not replace or circumvent existing authentication requirements; instead, they allow the proponent of the evidence to offer authentication by certification rather than demanding witness testimony, which can be both costly and time-consuming. …

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