Face/Off: “DeepFake” Face Swaps and Privacy Laws By: Erik Gerstner Erik Gerstner is an associate at David, Kamp & Frank, L.L.C. in Newport News, Virginia. Erik received his JD from William & Mary Law School in 2018. He focuses his practice on civil litigation, including business litigation, real estate, personal injury, and reputational injury. This article has been expanded from one the author published in For The Defense. N 2018, a curious trend spread making it appear as though Cage had rapidly across the Internet: always portrayed those characters.2 I people posting videos of Nicholas Nicholas Cage’s central role in Cage’s performances in various DeepFake videos is fitting, given his Hollywood films.1 To the uninitiated starring role alongside John viewer, these videos might appear Travolta in 1997’s Face/Off, a film in to be nothing special, just various which his and Travolta’s characters facets of Cage’s prolific career. both end up wearing the other’s However, closer inspection would faces throughout the film. Although reveal a subtler thread running it was only a fanciful Hollywood throughout these clips: none of invention in 1997, face swapping these performances actually technology entered the mainstream involved Cage. Rather, thanks to in 2017. In August of that year, relatively new artificial intelligence University of Washington (AI)-powered software programs researchers released a video, colloquially known as DeepFakes, seemingly of Barack Obama, Internet users had seamlessly discussing topics such as terrorism, inserted Cage’s face over the faces of fatherhood, and job creation, which the original actors in these scenes, had been created using machine 1 John Maher, This was the year of the https://www.dailydot.com/unclick/nicolas deepfake Nicolas Cage meme, THE DAILY DOT -cage-memes-deepfakes-2018. (Dec. 27, 2018), available at 2 Id. 2 DEFENSE COUNSEL JOURNAL | JANUARY 2020 learning algorithms.3 By 2018, light claims. The first section will similar tools became publicly discuss the software and the available, with the most popular, technology behind it, including a called FakeApp, available for free brief introduction to how it online. FakeApp was developed technically functions. Next, this using Google’s open-source deep article will discuss the state of the learning software. In its first two relevant law and examine how face months of being publicly available, it swaps have and will continue to was downloaded more than intersect with applicable statutory 120,000 times.4 and case law. Finally, it will discuss The many-faceted ramifications potential judicial and legislative stemming from the widespread solutions to present and future availability of this and other similar problems arising from these sorts of software are staggering. The AI technologies. unprecedented ability to create fabricated messages from I. Fakeapp and Machine politicians and other celebrities, or Learning “fake news” in the parlance of our current political climate, is a major The influx of fake videos stems concern - the Pentagon alone has largely from the widespread already spent tens of millions of availability of simple yet powerful dollars in an effort to research and software tools such as FakeApp. combat DeepFakes.5 However, Utilizing machine learning to train although the political and cultural AI, it condenses what would be an ramifications of DeepFakes are exceedingly complex operation for significant, and worthy of even the most experienced digital considerable attention across the artists into a single button press to spectrum of areas that they affect, create a face swapped video. While this article will be limited to having a moderately powerful primarily examining the legal issues computer is a slight barrier to the likely to arise from these programs, effective usage of the program, it including privacy, the right to one’s otherwise is relatively own likeness, and defamation/false uncomplicated to create fake media 3 Jennifer Langston, Lip-syncing Obama: New TIMES (Mar. 4, 2018), at A1, available at tools turn audio clips into realistic video, https://www.nytimes.com/2018/03/04/te UNIVERSITY OF WASHINGTON NEWS (July 11, chnology/fake-videos-deepfakes.html. 2017), available at http://www. 5 Dan Robitzski, Pentagon’s AI Director Calls washington.edu/news/2017/07/11/lip- for Stronger Deepfake Protections, FUTURISM, syncing-obama-new-tools-turn-audio-clips- (Aug, 30, 2019), available at into-realistic-video. https://futurism.com/the-byte/pentagon- 4 Kevin Roose, It Was Only a Matter of Time: ai-director-deepfake-protections. Here Comes an App for Fake Videos, NEW YORK Face/Off: “DeepFake” Face Swaps and Privacy Laws 3 with it.6 In its most basic form, all a operations and requires user needs is a “base” video and a considerable computing power number of source images of the face from any hardware on which it runs. of the person being pasted into the The final video quality is video. The more source images determined by a combination of input into the program, the more factors, including the similarity of seamless the final video will the faces and poses among the base appear.7 video and the source images, and the After creating the datasets, amount of time spent and quality of FakeApp then trains the deep the AI training. What is not a factor, learning algorithm, a process that however, is the software itself – can take hours or even days, computer-generated faces were depending on how powerful a once strictly the domain of big- computer is used and the quality budget studios with deep pockets, sought for the final video. Thereafter, proprietary software tools, and the user needs only to click one considerable amounts of time. For more button to create the resulting example, the much-discussed video. A more experienced creator appearance of a computer- may be able to achieve a higher generated young Carrie Fisher in degree of realism through more Star Wars: Rogue One in 2016 was involved interaction with the the product of a $200 million FakeApp software, but by following production budget, and, according the basic steps, even a novice can to the visual effects supervisor, “a fairly easily create a face swap using super high-tech and labor-intensive the program.8 version of doing makeup.”10 Now, While this process is private individuals are able to create straightforward for the front-end videos equaling or even surpassing user, it is anything but for the those created by these studios for a computer running FakeApp.9 The tiny fraction of the time and software utilizes Google’s open expense.11 Machine learning is the source TensorFlow machine great equalizer: thanks to the learning algorithm to power its powerful AI algorithms powering 6 Roose, supra note 4. audio track, rather than simply 7 Id. superimposing one face over another in an 8 Id. existing video. See Langston, supra note 3. 9 Note that other face swap AI programs do 10 B.J. Murphy, Reddit user outperforms not necessarily operate in the same way. For Disney with AI-generated Princess Leia, GRAY example, the University of Washington SCOTT (Jan. 25, 2018), available at algorithm is considerably more in-depth, https://www.grayscott.com/seriouswonde learning what shapes mouths make when r-//reddit-user-outperforms-disney-with- vocalizing certain sounds, then creating ai-generated-princess-leia. video from whole cloth to match a given 11 See, e.g., id. 4 DEFENSE COUNSEL JOURNAL | JANUARY 2020 FakeApp and similar software, those One potential legal concern able to make full use of it have had flowing from these fake images is the power at their fingertips defamation. A defamation cause of enhanced exponentially, a process action could arise from an individual of growth that is likely to continue using FakeApp or similar software as this technology continues to to create a fake video of an progress.12 individual saying or doing something that would injure the II. Privacy, Defamation, and Fake individual’s reputation if it were News: The Present State of the true. For example, in the Law aforementioned video the University of Washington created of There are potential President Obama, the audio could be ramifications flowing from the any recording the creator wants to creation and use of the resulting use, literally putting words of the media that span the legal spectrum, creator’s choosing into Obama’s including ramifications in election mouth, including statements that law, criminal law, evidence, and could be highly offensive to an intellectual property. This article, unsuspecting viewer.14 In states that however, will focus on potential recognize a difference between privacy issues, including defamation, slander and libel, a face swapped false light, and the right of publicity, video could easily give rise to both of also sometimes known as these causes of action. For example, personality rights.13 While case law if someone creates a video and statutory law regarding deep purportedly showing Person A fakes currently is scant or saying defamatory things about nonexistent, there are analogues Person B, then Person B might have which may provide some guidance a claim for slander (as the as to how the law in the United defamatory statements were States will address issues arising verbal), while Person A might have a from these new technological cause of action for libel. advancements. 12 Joe McKendrick, More artificial available at https://www.sfchronicle.com/ intelligence, fewer screens: the future of business/article/If-you-think-fake-news-is- computing unfolds, ZDNET (Sept. 9, 2017), bad-fake-video-is- 12751052.php; Ari available at http://www.zdnet.com/article/ Breland, Lawmakers worry about rise of fake artificial-intelligence-the-new-user- video technology, THE HILL (Feb. 19, 2018), interface-and-experience. available at http://thehillcome/policy/ 13 See, e.g., Benny Evangelista, If you think technology/374320-lawmakers-worry- fake news is bad, fake video is coming, SAN about-rise-of-fake-video-technology.