Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn’s Next Tragic Act
By Rebecca A. Delfino
This could happen to you.
Like millions of people worldwide, you have uploaded digital photographs of yourself to the internet through social media platforms. Your pictures aren’t sexually explicit or revealing—they depict your daily life, spending time with friends or taking “selfies” on vacation. But then someone decides they don’t like you. Using an app available on any smartphone, this antagonist clips digital images of your face from your innocuous pictures and pastes them seamlessly onto the body of a person engaged in sexually explicit acts. Without your knowledge or consent, you become the “star” of a realistic, pornographic “deepfake.”
This hypothetical reflects an emerging phenomenon in sex exploitation cybercrimes—it is the next tragic act in the unauthorized public dissemination of private, sexually explicit photos or videos known as “revenge porn.” Is there anything you can do if someone inserts you into a pornographic deepfake image or video against your will? Is it against the law to create, share, and spread falsified pornography on the internet?
At best, the answer to these questions is complicated and uncertain. At worst, the answer is no. Although criminalizing bad acts is the most effective deterrent against bad actors, no federal or state laws currently criminalize the creation or distribution of pornographic deepfakes. And since deepfakes exist in cyberspace, they are not confined to an individual state jurisdiction. This Article is the first to focus on the intersection of the law and pornographic deepfakes and to propose a legislative solution to the harms they unleash. Ultimately, this Article proposes a national response rooted in federal criminal law because everyone, everywhere is a potential deepfake victim—even you.