<\/p>\n
But just as Adobe Photoshop forever changed digital photography, \u201cdeep fake\u201d processing threatens the reliability of video and audio recordings. Rather than simply pasting a photo on top of an underlying video,[3]<\/a> a \u201cdeep fake\u201d video is produced by training a machine learning algorithm with example images of a subject face, then digitally stitching the resulting model onto a target host.[4]<\/a> The same technique applies to audio to produce convincing, though fake, recordings.[5]<\/a> Complicating the issue further is the source of training data, which may be voluntarily-uploaded images scraped (automated extraction of data) from Facebook, LinkedIn, or YouTube, or actively collected by from across the entire internet by companies such as Clearview AI.[6]<\/a> Because of their unapproachable cost, traditional Hollywood movie techniques have largely been ignored as a threat to \u201ceveryday\u201d recordings.[7]<\/a> \u201cDeep fakes,\u201d on the other hand, may be produced using free applications running on relatively low-cost, retail graphics processors installed in home computers.[8]<\/a>Results vary depending on the available computing power, extent of training data, and time to process.[9]<\/a><\/p>\n <\/p>\n \u201cDeep fakes\u201d present several issues, and although some uses may be benevolent, potential threats are substantial. For instance, one artist used this medium to produce synthetic videos of prominent people doing things that they have never done publicly, such as responding to sexual assault allegations or discussing the spread of conspiracy theories.[10]<\/a>Similarly, others leveraged the technology to develop a satire news report placing various public figures in ironic situations.[11]<\/a> Both of these sets of examples are acknowledged by their producers to be fake videos. But in 2019, videos went viral on Facebook depicting House Speaker Nancy Pelosi \u201cdrunkenly slurring her words.\u201d[12]<\/a> Though the editing technique was fairly rudimentary, these Speaker Pelosi videos illustrated how an anonymous producer can make a reasonably believable video with ease. People shared the videos without much thought, spreading doubt and sowing discord through the click of a mouse.[13]<\/a> Ideologically opposed communities may be entrenched further through tactical use of skewed information.[14]<\/a> Many public figures and celebrities have fallen victim to similar tactics; as the process proliferates, those most impacted will likely be women and marginalized communities.[15]<\/a> As \u201cdeep fake\u201d production software continues to metastasize and those who use it access more and more social media profiles, the likelihood of victimization of regular folks becomes more acute.[16]<\/a><\/p>\n <\/p>\n While these developments present obvious concern over public discourse, safety, and the understanding of truth, what implications do they have on evidence presented in court? Assuming that an initial recording is itself considered reliable, any break in the chain of custody of video evidence could cast doubt on a video\u2019s authenticity, especially as \u201cdeep fake\u201d integration continues to improve.[17]<\/a> Juries may \u201cbe swayed by arguments to not take certain evidence into their consideration\u201d in the absence of authentication by qualified experts.[18]<\/a> Indeed, this development is related to a phenomenon termed \u201creality apathy,\u201d where \u201cconstant contact with misinformation compels people to stop trusting what they see and hear.\u201d[19]<\/a> This apathy spread quickly as Donald Trump allegedly coined the term \u201cfake news\u201d following the 2016 election and continued to repeat it over the ensuing years.[20]<\/a> For these reasons, and to combat the rising presumption against accuracy, it is likely that video editing experts will be commonplace in courtroom protocol in the near future.[21]<\/a><\/p>\n <\/p>\n However, it will not be long until \u201cdeep fake\u201d production transcends the so-called \u201cuncanny valley,\u201d the point at which it will be nearly indistinguishable from reality.[22]<\/a> Detection will become more important than ever, but technology to conclusively detect and block \u201cdeep faked\u201d media may be decades away.[23]<\/a> Use of \u201cdefensive artificial intelligence\u201d may eventually become commonplace to provide requisite expertise on the question of authenticity.[24]<\/a> Of course, such a protocol raises critical access to justice questions, especially when parties are unable to bear the cost of expert testimony, let alone the additional use of complex computer analysis.[25]<\/a> And in spite of the assurance of experts, reality apathy could erode trust and negatively affect the basic assumptions made by jurors even before entering the courtroom.[26]<\/a><\/p>\n <\/p>\n Federal and state efforts have attempted to address cybercrimes, but these efforts failed to directly target the spread of \u201cdeep fakes\u201d and did nothing to address evidentiary concerns. California, Texas, Florida, and New York each attempted to address \u201crevenge porn\u201d and cyberstalking.[27]<\/a> Existing federal law chews around the edges, while efforts to pass reform have all died in committee.[28]<\/a> A cohesive federal strategy is likely required to address the threat of \u201cdeep fakes,\u201d the effects of which respect no border, are instigated by actors from behind layers of anonymity and encryption, and against which requires expensive and complex litigation.[29]<\/a><\/p>\n <\/p>\n As for evidence at trial, the federal rules are written to afford judges\u2019 discretion.[30]<\/a> Similar to the way courts, in many cases, defer to agency expertise to resolve statutory ambiguities rather than substitute their own interpretation,[31]<\/a> the flexible nature of the evidence rules may leave too much ambiguity for judges to effectively rule when faced with a possible \u201cdeep fake.\u201d Realizing that the absence of qualified expert testimony could become commonplace, it may be necessary to build presumptions into the rules to guide judges in their rulings. Regardless, the rapid advance of \u201cdeep fake\u201d technology will continue to challenge courts and society for years to come.<\/p>\n <\/p>\n [1]<\/a> Fed. R. Evid. 1002.<\/p>\n [2]<\/a> See generally<\/em> Stephen L. Chew, Myth: Eyewitness Testimony is the Best Kind of Evidence<\/em>, Psych. Sci. (Aug. 20, 2018), https:\/\/www.psychologicalscience.org\/teaching\/myth-eyewitness-testimony-is-the-best-kind-of-evidence.html (comparing the unreliability of witness testimony with the completeness of a video recording).<\/p>\n [3]<\/a> See, e.g.<\/em>, JibJab (2020), https:\/\/www.jibjab.com\/ (providing a service with which consumers may send greeting cards featuring friends and family in humorous videos).<\/p>\n [4]<\/a> See<\/em> Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security<\/em>, 107 Calif. L. Rev. 1753, 1759 (2019).<\/p>\n [5]<\/a> 3 Computer Contracts \u00a7 15.02(2)(p) (2020).<\/p>\n [6]<\/a> See<\/em> Angela Morris, Don\u2019t Roll That Tape: Deepfakes Creating Litigation Nightmares<\/em>, Tex. Law. (Feb. 10, 2020, 11:40 AM), https:\/\/www.law.com\/texaslawyer\/2020\/02\/10\/dont-roll-that-tape-deepfakes-creating-litigation-nightmares\/.<\/p>\n [7]<\/a> See<\/em> 6 Best Deepfake Apps and Tools in 2020<\/em>, RankRed (Mar. 1, 2020), https:\/\/www.rankred.com\/6-best-deepfake-apps-and-tools-in-2020\/#:~:text=DeepFaceLab.<\/p>\n [8]<\/a> See id.<\/em><\/p>\n [9]<\/a> See id.<\/em><\/p>\n [10]<\/a> About<\/em>, Deep Reckonings, http:\/\/www.deepreckonings.com\/about.html (last visited Nov. 9, 2020) (depicting the likenesses of Mark Zuckerberg, Justice Brett Kavanaugh, and Alex Jones).<\/p>\n [11]<\/a> Sassy Justice, YouTube (Oct. 26, 2020), https:\/\/youtu.be\/9WfZuNceFDM; Dave Itzkoff, The \u2018South Park\u2019 Guys Break Down Their Viral Deepfake Video<\/em>, N.Y. Times (Oct. 29, 2020), https:\/\/www.nytimes.com\/2020\/10\/29\/arts\/television\/sassy-justice-south-park-deepfake.html.<\/p>\n [12]<\/a> Corinne Reichert, Congress Investigating Deepfakes After Doctored Pelosi Video, Report Says<\/em>, CNet (June 4, 2019, 3:35 PM), https:\/\/www.cnet.com\/news\/congress-investigating-deepfakes-after-doctored-pelosi-video-report-says\/.<\/p>\n [13]<\/a> See<\/em> Wallace Baine, Welcome to Deepfake Hell<\/em>, Good Times (Nov. 26, 2019), https:\/\/goodtimes.sc\/cover-stories\/deepfake\/.<\/p>\n [14]<\/a> See<\/em> Oscar Schwartz, You Thought Fake News was Bad? Deep Fakes are Where Truth Goes to Die<\/em>, Guardian (Nov. 12, 2018, 5:00 AM), https:\/\/www.theguardian.com\/technology\/2018\/nov\/12\/deep-fakes-fake-news-truth.<\/p>\n [15]<\/a> Symposium, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security<\/em>, 78 Md. L. Rev. 882, 885\u201386 (2019).<\/p>\n [16]<\/a> See<\/em> Baine, supra<\/em> note 12.<\/p>\n [17]<\/a> See<\/em> David Notowitz, Deepfakes and the Growing Trend of Fabricated Video Evidence<\/em>, Recorder (May 2, 2019, 11:50 AM), https:\/\/www.law.com\/therecorder\/2019\/05\/02\/deepfakes-and-the-growing-trend-of-fabricated-video-evidence\/.<\/p>\n [18]<\/a> Id.<\/em><\/p>\n [19]<\/a> Schwartz, supra<\/em> note 14.<\/p>\n [20]<\/a> See<\/em> Andrew Beaujon, Trump Claims He Inveneted the Term \u201cFake News\u201d\u2014Here\u2019s an Interview with the Guy Who Actually Helped Popularize It<\/em>, Washingtonian (Oct. 2, 2019), https:\/\/www.washingtonian.com\/2019\/10\/02\/trump-claims-he-invented-the-term-fake-news-an-interview-with-the-guy-who-actually-helped-popularize-it\/.<\/p>\n [21]<\/a> Notowitz, supra<\/em> note 16.<\/p>\n [22]<\/a> Baine, supra<\/em> note 13 (explaining that \u201cthe \u2018uncanny valley effect\u2019 . . . [defines that] the closer technology got to reality, the more dissonant small differences would appear to a sophisticated viewer\u201d).<\/p>\n [23]<\/a> Chesney & Citron, supra<\/em> 4, at 1788.<\/p>\n [24]<\/a> 3 Computer Contracts \u00a7 15.02(2)(p) (2020).<\/p>\n [25]<\/a> See generally<\/em> David Medine, The Constitutional Right to Expert Assistance for Indigents in Civil Cases<\/em>, 41 Hastings L.J. 281, 303 (1990) (arguing that the Supreme Court should develop a \u201cright to expert assistance based upon equal protection principles\u201d).<\/p>\n [26]<\/a> Chesney & Citron, supra<\/em> note 4, at 1779.<\/p>\n [27]<\/a> Rebecca Delfino, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn\u2019s Next Tragic Act<\/em>, 88 Fordham L. Rev. 887, 909\u201317 (2019).<\/p>\n [28]<\/a> See id.<\/em> at 904\u201310.<\/p>\n [29]<\/a> See<\/em> Chesney & Citron, supra<\/em> note 4, at 1792\u201393.<\/p>\n [30]<\/a> See, e.g.<\/em>, Fed. R. Evid. 1008 (instructing that \u201cthe court determines whether the proponent has fulfilled the factual conditions for admitting\u201d evidence, rather than specifying very particular lists of requirements for each type of evidence).<\/p>\n [31]<\/a> See<\/em> Chevron U.S.A., Inc. v. NRDC, Inc.<\/em>, 467 U.S. 837, 844 (1984).<\/p>\n Image Source:\u00a0\u00a0“Security Cameras”<\/a>\u00a0by\u00a0JeepersMedia<\/a>\u00a0is licensed under\u00a0CC BY 2.0<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" By\u00a0Kyle Durch If a picture is worth a thousand words, then a video is priceless. In court, the fallibility of witness testimony favors the introduction of photographic or video evidence, when available, rather than a description of its content by a witness.[1]Video evidence is seen as so obviously reliable that it provides the foil […]<\/p>\n","protected":false},"author":4744,"featured_media":8917,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[51366],"tags":[],"class_list":["post-8916","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-blog-post"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/blog.richmond.edu\/jolt\/files\/2020\/11\/Camera.jpg","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-2jO","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/8916","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4744"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=8916"}],"version-history":[{"count":1,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/8916\/revisions"}],"predecessor-version":[{"id":8918,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/8916\/revisions\/8918"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media\/8917"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=8916"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=8916"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=8916"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/jolt.richmond.edu\/files\/2020\/11\/Camera-300x160.jpg\")
<\/p>\n