California’s newest law could land social media users who post, or repost, AI deepfakes that deceive voters about upcoming elections in legal trouble. Governor Gavin Newsom suggests that AB 2839, which went into effect immediately after he signed it on Tuesday, could be used to reel in Elon Musk’s retweets, among others who spread deceptive content.
“I just signed a bill to make this illegal in the state of California,” said Newsom in a tweet, referencing an AI deepfake Musk reposted earlier this year, appearing as if Kamala Harris called herself an incompetent candidate and a diversity hire (she did not).
“You can no longer knowingly distribute an ad or other election communications that contain materially deceptive content — including deepfakes,” Newsom said later in the tweet.
California’s new law targets the distributors of AI deepfakes, specifically if the post resembles a candidate on California ballots, and the poster knows it’s a fake that will cause confusion. AB 2839 is unique because it doesn’t go after the creators of AI deepfakes, nor the platforms they appear on, but rather those who maliciously spread them. Anyone who sees an AI deepfake on social media can now file for injunctive relief, meaning a judge could order the poster to take it down, or issue monetary damages against the person who posted it.
It’s one of America’s strongest laws against election-related AI deepfakes heading into the 2024 presidential election.
A sponsor which helped draft AB 2839, California Initiative for Technology and Democracy (CITED), tells TechCrunch this law can impact any social media user — not just Musk — who posts or reposts election-related AI deepfakes with malice. “Malice” means the poster knew it was false and would confuse voters.
“[AB 2839] goes after the creators or distributors of content, if the content falls within the terms of the bill,” said CITED’s policy director, Leora Gershenzon, in an interview with TechCrunch. “This is materially deceptive content that is distributed knowing it’s false, with reckless disregard of the truth, and is likely to influence the election.”
When asked whether Musk could face legal action for reposting deepfakes, Newsom did not rule out the possibility.
“I think Mr. Musk has missed the punchline,” said Governor Newsom at a press conference Thursday. “Parody is still alive and well in California, but deepfakes and manipulations of elections — that hurts democracy.”
Specifically, the new law bans election-related AI deepfakes from TV, radio, phone, texts, or any communication “distributed through the internet.” The bill is not exclusive to political campaign ads, which other laws have focused on, but also posts from everyday people. AB 2839 creates a window –120 days before a California election and 60 days after — where there are stricter rules about what you can, and can not, post about political candidates on social media.
“The real goal is actually neither the damages or the injunctive relief,” said Gershenzon. “It’s just to have people not do it in the first place. That actually would be the best outcome… to just have these deepfakes not fraudulently impact our elections.”
This law pertains to candidates for state and local elections in California, as well as federal candidates that will appear on California’s ballot, such as Kamala Harris and Donald Trump. If there’s an obvious disclaimer on an AI deepfake, stating that it has been digitally altered, then AB 2839 does not apply to it.
Musk is already trying to test the will to enforce California’s new law. Musk reposted the deepfake resembling Kamala Harris that Newsom referenced in his tweet on Tuesday, amassing more than 31 million impressions on X. Musk also reposted an AI deepfake resembling Governor Newsom on Wednesday, which received more than 7 million impressions.
Musk and X are facing other legal problems related to moderation. For instance, a Brazilian Supreme Court judge fined the X Corporation on Thursday for skirting the country’s ban on the platform. The judge previously said X’s failure to combat fake news and hate speech is harming Brazil’s democracy.
