New deep-fake Indiana election law may matter this campaign season

One of the most common election-related questions Greenwood-based attorney Michelle Harter gets from clients is, "What can I safely post on social media?"

With a new Indiana law on the books this year, her typical advice ― make sure it's true ― has an added layer: Make sure it's not a life-like fake or digitally altered image.

As artificially generated "deep fakes" proliferate on the internet and grow more difficult to detect, it's increasingly likely they'll be used to target political candidates campaigning in this 2024 election season. The Indiana General Assembly passed a law in March allowing candidates or elected officeholders who have been depicted in deep-fake images, audio or video to sue the person responsible for creating or disseminating those fakes as part of a campaign message ― unless the creator or poster adds a disclaimer saying, "Elements of this media have been digitally altered or artificially generated."

More: Roundup: Elections bills moving through Indiana General Assembly that will impact voters

"We are talking about advanced technologies that are so good at transformations a reasonable person can't even tell that the images or recordings were doctored," Rep. Julie Olthoff, R-Crown Point, said during a January hearing for the bill she authored. "People have the right to know whether what they are seeing, hearing or reading is the truth or fiction."

The law outlines expedited justice for the wronged. It's not all that hard to violate the law. But it hasn't been tested in court, so not many people, even lawyers in the field, have heard much about it.

"I don’t even think this is on anybody’s radar," Harter said.

At first glance, one might think Transportation Secretary Pete Buttigieg could have a case against people in Indiana who've disseminated a debunked image of him appearing to breastfeed a baby using a device. Lieutenant governor candidate Micah Beckwith is among those who shared a collage of images that included this doctored one with no disclaimer.

But the law, House Enrolled Act 1133 , has a narrow enough set of parameters that very likely excludes this example, legal experts opined. For one, the law only applies to candidates running for office or people currently in elected office, and Buttigieg is neither.

Secondly, a person who simply reposts a fake image as part of an effort to injure a candidate has some protection from liability if the original post did not come with a disclaimer. In other words, a "disseminator," under this law, must have "knowingly, intentionally, or recklessly altered or removed the disclaimer" before sharing.

Third, the law relies on the always-tricky concept of intent. The communication in question must have the purpose of advocating for the election or defeat of a "clearly identified" candidate with the intention of injuring them or influencing the outcome of said election.

"How do you prove someone’s intentionality? You can’t really know for sure," Harter said. "It’s also going to be very subjective depending on who’s hearing the case."

Ideally, says Indianapolis attorney Russell Sipes, the law should be expanded beyond just candidates and electeds. But he still thinks the law, as it's written, is worth having ― even if it proves most of its worth once it gets tested in an actual lawsuit.

It brings to mind for him a quote from British author Samuel Johnson: "When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."

"I’ve always applied that idea to statutes that don’t look like they will do much, but if anyone gets burned by it, everyone else will start to pay attention," Sipes said.

Contact IndyStar state government and politics reporter Kayla Dwyer at kdwyer@indystar.com or follow her on Twitter @kayla_dwyer17 .

This article originally appeared on Indianapolis Star: New deep-fake Indiana election law may matter this campaign season