Deepfakes bill clears state Senate, loses impact on 2024 primary

The South Dakota Senate convenes on Feb. 5, 2024. (Makenzie Huber/South Dakota Searchlight)

A bill to bar the dissemination of unlabeled “deepfakes” within 90 days of an election cleared the state Senate on Tuesday, but not before lawmakers stripped it of an emergency clause that would have changed the law in time for the 2024 primary.

Deepfakes is the blanket term attached to photos, audio and video manipulated digitally to resemble or sound like a real person, and they’ve already been used to target voters in the U.S. presidential election. In last month’s primary election in New Hampshire, voters heard robocalls from a voice purporting to be President Joe Biden that urged them to “save their vote” for the general election.

Sen. Liz Larson, D-Sioux Falls, is the prime sponsor of Senate Bill 96 , which she calls a “light touch” regulation. Twenty-seven states have or are trying to enact outright bans or create regulations around deepfakes, but Larson said South Dakota should take a careful approach that creates accountability without overreaching.

There may be a need for more serious regulation as the technology evolves, she said, but deepfakes are already convincing enough to be used against any candidate.

“There are currently no laws on our books to prevent anyone from doing this,” Larson said.

Larson played a phony audio clip made to sound like former President Donald Trump during the bill’s committee hearing last week.

SB 96 would make it a class 1 misdemeanor, punishable by up to a year in jail, to create and release a video, photo or audio manipulated by digital means to resemble a real person “with the intent to injure a candidate or influence the result of an election” unless it is labeled as fake.

It would also empower the attorney general or targeted candidate to “seek injunctive or other equitable relief prohibiting the dissemination of the deepfake,” and allow the state Board of Elections to issue fines for breaking the law.

Those caught creating and releasing election-related deepfakes not labeled as such more than once in five years could be fined up to $10,000 by the board, and those who do so with the intent to cause violence could be fined up to $5,000. In all other cases, the board could issue a $1,000 fine.

As debate on the bill commenced, Larson asked for and received support from her fellow senators to amend the bill with exemptions for media organizations that unknowingly publish or broadcast deepfakes in electoral ads. There are also exemptions for satire or parody.

Those clauses were an issue for Sen. David Wheeler, R-Huron. Satire is subjective, he said, and he also didn’t like the idea that he could “pay a buddy $5” to post a deepfake to a blog and avoid punishment.

“As long as you pay someone to publish it, it’s OK,” Wheeler said of the amendment.

Sen. Liz Larson, D-Sioux Falls, listens to testimony during a state Senate Education Committee meeting on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)

Sen. John Wiik, R-Big Stone City, argued that it’s too soon to regulate such a new technology.

“This is a new thing. And when we’re entering into new territory, our gut instinct is ‘we need a law,’” Wiik said.

He also objected to handing the Board of Elections the power to fine people – something it’s never had, Wiik said.

The majority of senators disagreed with Wheeler and Wiik, though. They voted to back the bill 21-11, not enough to get the two-thirds majority required to make the bill law immediately with the governor’s signature. It was enough, however, for Lt. Gov. Larry Rhoden to invoke Joint Rule 513, which allows a bill that misses the two-thirds mark but gets majority support to be immediately reconsidered without an emergency clause.

After an amendment removing the clause was moved and seconded, SB 96 passed on a 22-10 vote. Sen. Julie Frye-Mueller, R-Rapid City, switched her vote after the amendment.

Larson’s bill now moves to a House of Representatives committee. If it passes that chamber and is signed by the governor, it will take effect July 1, after the June primary election and before the November general election.

Another bill on deepfakes, SB 107 , has yet to see a committee hearing. That bill, from Rapid City Republican Sen. David Johnson, is a companion bill to SB 96. It would go beyond elections to punish those who create deepfakes of any person “with the intent to defame, exploit, harass, intimidate, or sabotage the person.”

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