TO CREATE THE CRIMINAL OFFENSE OF UNLAWFUL CREATION OR DISTRIBUTION OF DEEPFAKE VISUAL MATERIAL; AND TO ESTABLISH A CAUSE OF ACTION FOR UNLAWFUL CREATION OF DEEPFAKE VISUAL MATERIAL.

I'll have to compare them in 1529 to 1877. House Bill 1529, committee. Okay. House Bill 1529, representative, would you and your guests identify yourselves for the record? Yes, Representative Steven Mix, District 42. Good morning, Justin Brasher, Senior Assistant Attorney General with the Arkansas AG's office. Thank you, committee and Mr. Chairman. So, the idea for this bill for me came from an AI conference that I attended this summer. They told us a story of, I guess it happened in Connecticut where boyfriend, girlfriend were in a relationship. Oh, I'm sorry. Make sure I'm not blowing you out here. Boyfriend, girlfriend were in a relationship. The relationship broke up. The boyfriend took her picture, put it on an illicit photo, spread it all over the school and basically destroyed her life. There were no laws in place that deal with that situation in Connecticut. As you know, these are emerging technologies. And so what this bill would do is it would put protections against that kind of thing in place from here in Arkansas. As I got this bill worked up, I sent it over to the AG's office, come to find out this was a priority bill for them. This is something that they wanted to have in place in the state too. So I work with them on this bill. And basically what the bill does is it would make it illegal in Arkansas for you to take the picture of a known identifiable person put it in an illicit photo and either create it or and or distribute it. If you do that, the penalty is the first time it's gonna be a class A misdemeanor. So if you're just a stupid kid, you do this. We're gonna slap you on the wrist real hard and let you know that was stupid. We're not gonna tolerate that here in Arkansas. After that first go around, if you do it again, it's gonna become a class D felony. So in a nutshell, that's what the bill does. If Mr. Berchere has any words that you'd like to add to it, then I will turn it over. Thank you, Representative Meeks. I'm not blowing everybody out here. Am I, we're good? Okay. Yes, this is the Attorney General's office. We support this bill when we saw that Representative Meeks had filed it. We had already been working on a couple things in this area and so reached out and worked on the language so that it's constitutional. Cause this is an area where there's a lot of constitutional law, a lot of case law regarding this sort of activity, particularly when it comes to adults and how it coincides with free speech. So what we've done is very intentionally taken a lot of language from the federal code that has been upheld and has not been found to be unconstitutional, worked with it. There's some case law, a case called Ashcroft. We've made sure that it fits with that case as well. And so the language, both the identifiable as well as the language that is on lines 10 to 14 of page two is specific where it says such as an ordinary person viewing the deep fake visual material will conclude that the depiction is of the identifiable person in sexual contact or other things is specific so that we are not, it's not overbroad in getting things that would then be considered speech. The other thing to be considered here is that oftentimes adult pornography is definitely viewed differently in the law than child sexual abuse material. However, when consent is taken out of the picture which is what's happened here when someone who has not consented to have their picture put in these sort of either images or videos then we're in a different area than consensual adult pornography. So the last part is we deal with this. Our people are investigators deal with this issue. They deal with what they call them sex distortion cases and those are situations where it might be a boyfriend, girlfriend, it might be some other situation. It might even be someone who they've never met online. They get a picture of them. They put that in something like this in a deep fake sort of situation or run it through some sort of AI and then come back and say give me money or I'm spreading this around. So this would criminalize both that possession and that distribution and the possession element is also because there's a lack of consent or comfortable with the constitutionality of the possession element as well. Happy to take any questions. Senator McKee, you're recognized for a question. Thank you, Mr. Chair. Thank you, Representative Meeks for bringing this bill. I think it's a very good idea and very much needed. There's no concern with the Attorney General's office that this could encumber anything like parity or anything like that where folks is intent, part of the process. So a couple of things. First is, again, it needs to be in a state of nudity or engaging in sexual contact. So that's the first part of this. But second is, if you look at the, it does need to be distributed and so because of those two things, we're not concerned about it affecting any sort of parity or anything like that. Thank you. Other questions from committee? The, what is the penalty for a class A misdemeanor and for a class D felony? Oh boy, I have to pull this off the top of my head. I do the, one of the prosecutors could one of y'all answer that real quickly? Okay, thank you. The answer was one year and $4,500 fine for a class A misdemeanor and up to six years and a $10,000 fine for a class D felony. Other questions from committee? Hearing none, Jeff Rosenzweig is signed up to speak against. Mr. Rosenzweig, if you will identify yourself for the record. Jeff Rosenzweig, Arkansas, Associated Criminal Defense Lawyers. You're not, we're not arguing about the distribution aspect. The attorney general was probably correct with regard to distribution. However, this is phrased in the disjunctive creation or distribution. And the, in other words, the mere creation without any distribution, without any other attempt to give it to anyone, display it to anyone would be a crime. That is going to be way overbroad in violation of First Amendment, in violation of the Ashcroft decision to which Mr. Brescher referred. Ashcroft decision talked about creation of things overbroad, overbred because some things may be artistic. Now, obvious, and as Senator McKee noted, there's no exception for parody. In other words, if I were or someone were to sit at one's computer and create an image of, let's say Donald Trump having some sort of sexual activity and just put it on his office wall to laugh at or whatever, somebody comes in, sees that, that's a crime under this law. That is way overbroad in violation of the First Amendment. And extortion, of course, which is obviously a form of communication is, that's a crime, we already know that, that's already against the law. But I would suggest very strongly that if this bill is going to be held to be constitutional, you take out the words creation and penalize only distribution. Questions from committee? And Mr. Chairman, I don't know if this would be the proper time to respond to that, but we do have a response once the committee finishes with their questions. Yeah, proper time will be closing unless somebody asks you a question while they're asking him a question. Question from committee? Senator Stubblefield. Mr. Rosenzweig, are you referring to the line on number 18, second page? Line 18. The word says unlawful creation or distribution. Okay, unlawful creation. It says unlawful, of course, the title of it is unlawful creation or distribution. Okay, and then if you look at line, line eight, for instance, knowingly creates or distributes. In other words, it's a crime merely to knowingly create. I can create something that is a parody that no one else would see that I don't tend for anyone else to see and put it on my office wall. And if someone comes in, let's say a policeman comes in or a sheriff comes in to serve a subpoena on me to come to court for something, he sees that he can arrest me for committing a crime under this, under this proposition here. That the, I am confident that a court would hold that the mere creation without any distribution or threat to distribute and just for simple possession of it, particularly in a political parody context, is going to be held woefully overbroad and we'll bring the whole statute down. Could AI be used in this situation? Yeah, AI could be used in it. The issue is not how it's created. The fact is the simple fact of creation without any distribution or threat of distribution of it and is would be, is a crime under this and that is going to clearly violate the First Amendment. Other questions from committee? Hearing none, thank you, Mr. Rosenzweiger. The representative makes you recognized to close for your bill. Thank you, colleagues. So obviously I don't pretend to be an attorney, I'm not an attorney, technology is my area of expertise, which is why I brought this, but just a couple of responses there. So first off, I know that Clarence Thomas, when he was on, or he still is on the Supreme Court, but many decades ago, when they first started establishing the case law that they're kind of using as a guide for this, he said at that time that as this technology develops that they're gonna have to come back and look at these issues and to further flesh them out. And so I think that with the passage of these bills that that is gonna take place. Secondly, just from a practical standpoint, if someone were to do this and take my image and create one of these in one of these compromising, I say that that is an invasion of my privacy. Would any of you be okay if a pervert took a picture of your wife or daughter and created that and put that on their computer and say that's okay protected speech? I don't. So I understand the concern, but I think we need to send a clear, loud message that it's not okay by any means, whether I'm just sitting in my basement and my underwear creating these pictures of, I'll just leave it at that. I think we need to get this done with that. I'll turn it over to. The only thing I'll add is just that in speaking to the parody element, lines 10 through 14 on page two, make it clear that it needs to be sexually explicit conduct that such as an ordinary person viewing that visual material would conclude the depiction is of the person engaging in sexual contact or sexual intercourse. And that's taken straight from the federal code. And the idea is again that this is not a parody. You look and you think it's the real thing. That's why the definition is written that way. And that's supposed to work at the federal level as well. Will the committee? Motion to pass from Center Stovefield. Second from Center Dees. Any discussion? Hearing none. All for the motion, signify by saying aye. All opposed, motion carried. Congratulations, Representative Meeks. You have passed your bill. I am going to interrupt you before you present the next one and let Center Dees present a bill so he can get back out of here. All right, we'll slide out of the way. Oh, okay. Got her down. Thank you, Mr. Chair. Thank you, members. State Senator Tyler Dees, District 35. We are looking at House Bill 1921.