AI Election Deepfake Measure at Risk in NY Budget Negotiations – Bloomberg Law

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A proposed curb on AI-made deepfakes might not make it into New York’s final spending plan ahead of a Thursday deadline to settle remaining budget issues, with Albany leaders still facing thorny questions about housing and health care.

The language (Part MM), backed by Gov. Kathy Hochul (D), would make campaigns disclose the use of artificial intelligence in campaign materials within 60 days of an election, similar to laws in other states like Michigan. Lawmakers argue the issue is too complicated to address in budget negotiations and should be considered as a standalone measure, though that could be harder to pass.

“With any new technology, there are always concerns and unanticipated challenges that arise,” Mike Murphy, a spokesperson for state Senate Majority Leader Andrea Stewart-Cousins (D), said Monday. “We look forward to discussing these issues both inside and outside the budget process.”

Assembly Speaker Carl Heastie (D), who has opposed adding policy items in the budget, said Tuesday that the proposal remains under discussion.

Legislative inaction against AI deepfakes in New York this year could have national importance, considering the state has several congressional swing districts that could help to determine control of the US House.

Budget or Bust

Deepfake restrictions might not be enacted unless lawmakers include them in the budget process. They extended the talks last week after missing the April 1 deadline set by state law.

New York’s budget process gives the governor leverage over lawmakers, because legislators face pressure to approve policy proposals as part of omnibus bills that include must-pass items like school funding.

That gubernatorial power doesn’t exist in the state’s normal legislative procedures. In the current situation, though, the deepfakes measure might have to compete with issues like housing negotiations that could dominate the remainder of the legislative session, which is scheduled to end on June 6.

“Time is of the essence,” groups including Public Citizen and the Brooklyn NAACP said in an April 1 letter to Hochul and legislative leaders. “We recognize that it is not feasible to address every aspect of the challenge posed by the latest advances in deceptive AI technology in time for the 2024 election, but that is no excuse for inaction.”

The groups said a bill (SB 8631) approved by the Senate Elections Committee last month could be a potential alternative to Hochul’s proposal in the budget. The Senate bill would limit to political candidates the right to sue and would have a narrower definition of deepfakes.

‘Field day’ for Courts?

Hochul’s proposal has encountered opposition. Justin Harrison, senior policy counsel at the New York Civil Liberties Union, said the language addressing materials made with “digitization” is so broad that it could arguably cover ordinary uses of technology—rather than the types of video and audio fakes aimed at politicians like President Joe Biden that have attracted attention in recent months.

The measure could set off a cascade of litigation, Harrison said. Hochul’s bill would allow voters to seek “injunctive or other equitable relief” against anyone who distributes, publishes, or broadcasts “deceptive media” with some exceptions for news gathering and parody, according to the language.

A proposed requirement that campaign materials feature a sentence informing viewers or listeners of the use of “digitalization” also raises First Amendment issues about prior restraint, Harrison said.

His group has urged Senate leaders to back a more deliberative approach to AI-made deepfakes, even if that results in no action in the budget.

“The courts are going to have a field day with stuff like this if it passes,” Harrison said.

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