AI Regulation for Protecting Digital Likeness

Big AI development! California’s AG's office has released its first legal advisory on how existing state laws apply to AI, and it’s full of gems! This gives explicit answers to many elements of the long-running debate about whether or not we need new laws about AI, or if existing laws apply. It specifically mentions two new laws that I helped pass last year with the California Initiative for Technology and Democracy (CITED), AB 2655 (Berman) & 2839 (Pellerin), and one that I publicly supported and encouraged Governor Gavin Newsom to sign (SB 942 - Becker). Some highlights: “...it may be unlawful under CA's Unfair Competition Law to:... • Use AI to foster or advance deception... the creation of deepfakes, chatbots, and voice clones that appear to represent people, events, and utterances that never existed or occurred would likely be deceptive. Likewise, in many contexts it would likely be deceptive to fail to disclose that AI has been used to create a piece of media.  • Use AI to create and knowingly use another person’s name, voice, signature, photograph, or likeness without that person’s prior consent… • Use AI to impersonate a real person for purposes of harming, intimidating, threatening, or defrauding… • Use AI to impersonate a government official… “Businesses may also be liable for supplying AI products when they know, or should have known, that AI will be used to violate the law…" Specifically on election disinfo, the AG says: “CA law prohibits the use of undeclared chatbots with the intent to mislead a person about its artificial identity in order to incentivize a purchase or influence a vote… It is also impermissible to use AI to impersonate a candidate for elected office… and to use AI to distribute... materially deceptive audio or visual media… “...in Election and Campaign Materials: • AB 2355 (Carrillo) requires any campaign ads generated... using AI to include the... disclosure: “Ad generated or substantially altered using artificial intelligence.”  • AB 2655 (Berman) requires that large online platforms... develop and implement procedures using state-of-the-art techniques to identify and remove certain materially deceptive election-related content—deepfakes—during specified periods before and after elections in CA. It also requires certain additional content be labeled as manipulated, inauthentic, fake, or false... must provide an easy mechanism for CA users to report the prohibited materials…” On watermarking/provenance: "SB 942... places obligations on AI developers... to make free and accessible tools to detect whether specified content was generated by generative AI systems.” On liability: “...CA laws—including tort, public nuisance, environmental and business regulation, and criminal law—apply equally to AI systems and to conduct and business activities that involve the use of AI...” Big thanks to State of California Attorney General, Rob Bonta, and his dedicated team for pulling this together! #AI #California

The U.S. Copyright Office this month released Part 1 of its report on the legal and policy issues related to copyright and artificial intelligence, focusing on digital replicas. For those who don't know, digital replicas are video, image, or audio recordings digitally created or manipulated to realistically but falsely depict an individual. An example includes the April 2023 song "Heart on My Sleeve," featuring AI-generated voices of Drake and The Weeknd. Here is a topline breakdown of what the Copyright Office has shared: 1️⃣ Existing Legal Frameworks and the Need for Federal Legislation: Current state and federal laws are inadequate in addressing digital replicas, revealing significant gaps and inconsistencies. Privacy and publicity rights are insufficient to tackle AI-generated content. Comprehensive federal legislation is urgently needed to protect individuals from substantial harm. 2️⃣ Scope and Protection of New Law: Proposed legislation should target digital replicas indistinguishable from authentic depictions, offering more precise protection than existing 'name, image, and likeness' laws. This law should apply to all individuals, not just celebrities, and extend at least for a lifetime with possible postmortem extensions. 3️⃣ Infringing Acts and Secondary Liability: Liability should focus on the distribution or availability of unauthorized digital replicas, covering both commercial and non-commercial uses. Traditional tort principles of secondary liability should apply, with a safe harbor mechanism for online service providers to remove infringing content upon notice. This approach balances accountability and practicality for intermediaries. 4️⃣ Licensing, Assignment, and Free Speech Concerns: Individuals should have the right to license their digital replica rights but not permanently assign them to others. Additional safeguards are needed to protect minors from exploitation. The legislation should address free speech concerns by balancing protection of individual rights with the need to avoid overly broad restrictions on expression. 5️⃣ Effective Remedies: The report calls for strong legal remedies, including court orders to stop infringement (injunctive relief) and monetary compensation. It emphasizes the importance of statutory damages and covering legal fees to make the law accessible to everyone. In severe cases, criminal penalties are suggested to act as a strong deterrent against violations, ensuring the law's effectiveness and fairness. Check out the full report below ⤵

Yesterday, the California Department of Justice, Attorney General’s Office (AGO), issued an advisory to provide guidance to consumers and entities that develop, sell, and use AI about their rights and obligations under California law. The "Legal Advisory on the Application of Existing California Laws to Artificial Intelligence" outlines: 1) Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.): Requires AI systems to avoid deceptive practices such as false advertising of capabilities and unauthorized use of personal likeness, making violations of related state, federal, or local laws actionable under this statute. 2) False Advertising Law (Bus. & Prof. Code, § 17500 et seq.): Prohibits misleading advertisements about AI products' capabilities, emphasizing the need for truthfulness in the promotion of AI tools/services. 3) Competition Laws (Bus. & Prof. Code, §§ 16720, 17000 et seq.): Guard against anti-competitive practices facilitated by AI, ensuring that AI does not harm market competition or consumer choice. 4) Civil Rights Laws (Civ. Code, § 51; Gov. Code, § 12900 et seq.): Protect individuals from discrimination by AI in various sectors, including employment and housing. 5) Election Misinformation Prevention Laws (Bus. & Prof. Code, § 17941; Elec. Code, §§ 18320, 20010): Regulate the use of AI in elections, specifically prohibiting the use of AI to mislead voters or impersonate candidates. 6) California's data protection laws ensuring oversight of personal and sensitive information: The California Consumer Privacy Act (CCPA) and the California Invasion of Privacy Act (CIPA) set strict guidelines for transparency and the secure handling of data. These regulations extend to educational and healthcare settings through the Student Online Personal Information Protection Act (SOPIPA) and the Confidentiality of Medical Information Act (CMIA). In addition, California has enacted several new AI regulations, effective January 1, 2025: Disclosure Requirements for Businesses: - AB 2013: Requires AI developers to disclose training data information on their websites by January 1, 2026. - AB 2905: Mandates disclosure of AI use in telemarketing. - SB 942: Obligates AI developers to provide tools to identify AI-generated content. Unauthorized Use of Likeness: - AB 2602: Ensures contracts for digital replicas include detailed use descriptions and legal representation. - AB 1836: Bans use of deceased personalities’ digital replicas without consent, with hefty fines. AI in Elections: - AB 2355: Requires disclosure for AI-altered campaign ads. - AB 2655: Directs platforms to identify and remove deceptive election content. Prohibitions on Exploitative AI Uses: - AB 1831 & SB 1381: Expand prohibitions on AI-generated child pornography. - SB 926: Extends criminal penalties for creating nonconsensual pornography using deepfake technology. AI in Healthcare: - SB 1120: Requires licensed physician oversight on AI healthcare decisions.