Posted on Wednesday, August 28th, 2024 at 12:48 pm
Recent advancements in computer technology, including the development of advanced artificial intelligence models, have given ordinary people the tools to create highly realistic images and videos of acts that never occurred. While this technology can be harmless under many circumstances, there are times when it becomes deeply problematic. For example, it enables people to create seemingly real media depicting individuals engaged in sexually explicit activity. These images, popularly called “deepfake pornography,” can cause embarrassment and humiliation for the individuals seemingly depicted in the media. Here’s what you need to know about Illinois’s laws concerning nonconsensual deepfake pornography.
What Is Deepfake Pornography
“Deepfake pornography” refers to sexually explicit photographs or videos created or altered using artificial intelligence or other computer technology to make it appear as if the sexually explicit materials depict a person who had not engaged in the acts depicted in the materials. Deepfake pornography may involve using computer technology to superimpose a person’s image and voice on top of a recorded sexually explicit act involving other people. However, recent advancements in AI technology have made it possible for computers to generate realistic depictions of sexually explicit materials from scratch using a person’s image or likeness.
Historically, deepfake technology has been used to create images and videos giving the appearance of celebrities engaged in sexually explicit acts. However, the proliferation of AI technology has enabled people to easily create deepfake pornography of anyone, including ordinary private citizens, whether for personal sexual gratification or to distribute the materials to embarrass or humiliate the person.
Illinois Law on Nonconsensual Pornography
Illinois criminal law has made it illegal to distribute private sexual images of a person without that person’s consent. The law defines sexual images as images displaying a person engaging in a sexual act or displaying the person’s intimate parts in part or whole. Under the law, a person commits a Class 4 felony if they intentionally disseminate an image of a person:
- At least 18 years of age
- Identifiable from the image or information displayed in connection with the image
- Engaged in a sexual act or who has their intimate parts exposed
- When the person disseminating the image obtained it under circumstances in which a reasonable person would know or understand the private nature of the image and knows or should know that the person depicted in the image has not consented to its dissemination
A Class 4 felony conviction in Illinois carries a penalty of one to three years in prison, a term of periodic imprisonment of up to 18 months, or an extended term of three to six years, plus a potential fine.
Illinois law also gives people who have sexual images of themselves disseminated without their consent a right to sue the party or parties responsible for distributing those images. Under the law, a person who is depicted in a sexual image identifiable to a reasonable person and who suffers harm from the intentional or threatened dissemination of the image may file an action against the party who disseminated or threatened to disseminate the image, provided the depicted individual did not consent to the dissemination. Furthermore, the law expressly states that merely consenting to the creation of the image or to prior disclosure of the image does not automatically establish consent to a present dissemination.
Does Illinois Law Cover Deepfakes?
The Illinois legislature recently amended the civil action statute covering nonconsensual dissemination of sexually explicit material, giving people a right to sue for nonconsensual dissemination of sexual images by including “digitally altered sexual images” within the statute’s scope. The law defines a “digitally altered sexual image” as any visual media created or substantially altered to give the appearance to a reasonable person that the media depicts an individual’s appearance or conduct. As a result, Illinois law gives individuals a civil claim against a party who creates and distributes deepfake pornography depicting the individual.
The Illinois criminal statute outlawing nonconsensual distribution of private sexual images does not yet explicitly mention “digitally altered sexual images.” The statute defines an “image” as “a photograph, film, videotape, digital record, or other depiction or portrayal of an object, including a human body.” However, depending on the person’s motivation, creating deepfake pornography may run afoul of other criminal statutes, such as those outlawing harassment/cyberharassment. Additionally, creating deepfake pornography of children engaged in sexually explicit acts, even when using AI to do so without the direct involvement of actual children, may violate Illinois’ child pornography laws.
Challenges in Deepfake Pornography Cases
With AI technology rapidly developing and improving in capability, deepfake pornography cases continually raise new challenges and novel legal questions. First, authorities may have trouble identifying perpetrators, including the party or parties responsible for creating and initially disseminating the sexually explicit materials. Distribution of materials online can make it easier for perpetrators to maintain anonymity. Furthermore, laws often cannot keep pace with technological advancements, which may allow parties to find and exploit legal ambiguities. Today’s AI technology can create visual media depicting individuals without inserting an existing image of an individual into an altered photo or video. As a result, fully AI-generated media can blur the line between activity that runs afoul of anti-deepfake laws and constitutionally protected artistic expression.
Defenses to Deepfake Pornography Charges
A person facing criminal charges for distributing nonconsensual deepfake pornography may have defenses available to them to fight their charges. For example, a defendant may argue that they had consent from the individual depicted in the media to create and distribute the materials. Alternatively, a defendant may argue that they did not base the material on a living individual and instead created the media from scratch, and that the person or persons depicted in the image or video merely bear an uncanny resemblance to a living person.
Contact a Criminal Defense Lawyer Today
If you’re facing charges over deepfake pornography, you need experienced, knowledgeable legal representation to guide you through the rapidly evolving laws relevant to the case against you. Call Bruno Law Offices today at (217) 328-6000 for a confidential consultation with a seasoned criminal defense attorney to discuss your legal options and the defenses that might be available to you.