When Seeing Can Not Be Believed: AI Deepfakes and the Law

Artificial intelligence (“AI”) has made big strides lately, but some changes are worrying. One of the biggest issues is the rise of "deepfakes" which are realistic but fake images, videos, and audio made by AI. These can make it look like someone said or did something they never did. As deepfakes get easier to make and harder to spot, New York and other states are starting to tackle the legal problems they cause.  

What are Deepfakes?

A deepfake is a digital video, photo, or audio clip made or changed by artificial intelligence to show events that never really happened. The technology studies lots of real images or recordings of a person, then creates new content that copies how they look, sound, and act. Today, anyone with an internet connection can make deepfakes using easy-to-find software and apps. 

What threats do Deepfakes pose?

Like the rise of the internet in the 1990s, deepfakes bring both benefits and risks. Sometimes, people use them for harmless jokes or sharing funny images with friends. But deepfakes can also be used to commit fraud, harass or defame others, or create non-consensual intimate images. Laws about fraud, defamation, and harassment were not designed for this technology, so it is hard to enforce them. It is also difficult to prove something is a deepfake and to find out who made it. Because deepfakes can spread quickly online, the harm is often done before any legal action can be taken.

New York State Law and Deepfakes

New York has taken strong steps to fight deepfakes, especially when it comes to non-consensual intimate images. In 2023, Governor Kathy Hochul signed a law that makes it a crime to create or share digitally altered or AI-made intimate images without someone's consent (often called “revenge porn”) under S.1042A/A.3596A. This law recognizes that deepfake tools have led to a new and serious kind of image-based abuse.

New York's Penal Law also contains broader rules that can cover deepfake-related actions. Crimes like identity theft, forgery, criminal impersonation, and computer tampering might apply in some cases, depending on what happened.

As AI keeps changing, it is more important than ever to be careful about what we see and share online.

This column is provided for general informational purposes only and does not constitute legal advice. Reading this column does not create an attorney–client relationship. Laws vary by jurisdiction and are subject to change. You should consult a qualified attorney for advice regarding your specific situation. 

If you have any questions, Lippes Mathias LLP attorney Mina Mirzaie-Frodey may be contacted regarding matters related to this topic and more at mmirzaie@lippes.com