The proliferation of “deep-fake” internet videos—in which a person in an existing video is replaced with the likeness of another—has called into question our most basic method for perceiving the world: using our own eyes. While the definition of deep-fake transforms as the technology develops, the video technology is generally regarded as the use of machine-learning to replace the face of one individual with another. Troublingly, deep-fakes have changed the landscape of digital pornography. Advances in computer morphing software have produced a new category of child pornography: “morphed” child pornography, in which a child’s face is virtually superimposed onto the body of an adult performing sexually explicit acts. Today, the rapidly changing field of technology has created an unresolved legal question: is “morphed” child pornography protected under the First Amendment?
In February of 2020, the Fifth Circuit Court of Appeals weighed in on the debate in United States v. Mecham. When Clifford Mecham Jr. took his computer to a technician for repairs, the technician discovered thousands of images depicting the nude bodies of adults with faces of children superimposed. Once notified, the Corpus Christi Police Department seized several hard drives, revealing over 30,000 pornographic photos and videos with “morphed” child pornography. The Fifth Circuit affirmed Mecham’s conviction, but remanded his case to reduce his sentence, holding that the sentencing enhancement for “sadistic or masochistic conduct” does not apply to morphed child pornography as there is no depictions of “contemporaneous infliction of pain.”
While child pornography is not protected under the First Amendment, virtual child pornography, sexually explicit images created with adults who look like minors or created solely by computer imaging, is protected speech. However, unlike virtual child pornography, morphed child pornography uses the likeness of an actual child. With their decision, the Fifth Circuit in a majority opinion joined the Second and Sixth Circuits creating a circuit split and holding that morphed child pornography can cause both reputational and emotional harm similar to actual child pornography. In a contrary opinion in 2014, the Eighth Circuit concluded that without an underlying criminal act of sexual abuse of a minor, the digitally altered images are protected. The Eighth Circuit was guided by the 2010 Supreme Court case United States v. Stevens, where the court noted that categorical exclusions from First Amendment protection required more than a cost-benefit analysis of the speech’s worth. Nonetheless, the Eighth Circuit upheld the conviction, concluding that in this circumstance the speech’s intrinsic relation to the underlying abuse of children was sufficient and the criminal prohibition at issue passed strict scrutiny.
Due to the rapidly advancing nature of digital technologies, this topic warrants further discussion. As with many of the new challenges presented by changing technology, it is unclear whether or not morphed pornography falls under current First Amendment jurisprudence. The Supreme Court has yet to weigh in on the split. It is further unclear whether existing statutes, namely the PROTECT Act passed by Congress in 2003, which seek to place an outright ban on the medium are constitutional. The language of the act categorically bans morphed child pornography.
Beyond the scope of morphed child-pornography, deep-fakes pose even further legal challenges. Fake-porn videos are weaponized to humiliate and harass women across the internet, and political figures have become the targets of increasingly convincing deep-fakes. Despite these videos posing major challenges to our political system and national security, the field of legal remedies is limited. Current First Amendment jurisprudence requires that any potential remedy for a deep-fake must undergo a strict balancing test, weighing the compelling interest in protecting political speech with the potential for dramatic public harm. In the digital age of sharing, legislatures face the challenge of adapting law to the unprecedentedly rapid rate of technological change in the 21st century. The internet has dramatically changed how these images and child pornography are shared. The circuit split identifies the inability of congressional lawmaking to keep pace with advances in technology. Consequently, the onus will fall on the judiciary to make lasting decisions about how technology might cause harm in the future and to guide state legislatures towards possible statutory amendments to address the rapidly shifting field of deep-fake technology.
* Aliya Crochetiere is an Associate Editor on the Michigan Technology Law Review.