WASHINGTON (CN) — Experts testifying before the Senate Judiciary Committee Tuesday were split on proposed bipartisan legislation aimed at hiking consequences for anyone using artificial intelligence to create digital replicas of people, with some urging lawmakers not to run afoul of free speech protections.
The upper chamber’s legal affairs panel met to hear from music and film industry professionals as Delaware Senator Chris Coons prepares to unveil his measure, known as the Nurture Originals, Foster Art and Keep Entertainment Safe — or NO FAKES — Act.
The bill, which currently exists as a discussion draft not yet ready for debate, would hold people or companies liable for creating unauthorized digital recreations of performing artists, as well as platforms that knowingly host or distribute such content.
The measure would not just apply to celebrities who make money off their name, image and likeness, but ordinary individuals as well.
“These issues aren’t theoretical,” Coons said during Tuesday’s hearing, pointing to prominent examples of misleading deepfakes such as explicit AI-generated images of Taylor Swift that circulated recently on X, formerly Twitter, and a robocall spoofing President Joe Biden’s voice targeting voters in New Hampshire’s presidential primary election.
“As AI tools have become increasingly sophisticated, it becomes easier to replicate and distribute fake images of someone,” Coons, who chairs the Judiciary Committee’s intellectual property subpanel, said. “We can’t let this challenge go unanswered, and inaction should not be an option.”
North Carolina Senator Thom Tillis, the subcommittee’s Republican ranking member, agreed. He noted that while politicians, artists and other public figures have long been subjected to misleading media, the rise of AI technology has supercharged things to the point where congressional action is necessary.
“We have to act,” Tillis said, “and hopefully, in this Congress, we can act — which means we have to move very, very quickly.”
Several of the witnesses who testified before the Judiciary Committee echoed those sentiments, including Tahliah Barnett, the U.K.-based artist better known by stage name FKA twigs.
“I stand before you today because you have it in your power to protect artists and their work from the dangers of exploitation and the theft inherent in this technology if it remains unchecked,” said Barnett. “Our careers and our livelihoods are in jeopardy.”
The "Caprisongs" singer-songwriter said that while she does not oppose the use of artificial intelligence as a tool to help artists enhance their work, it should not be acceptable for third parties to exploit their image, voice and likeness without consent — or without proper legislative controls.
“AI cannot replicate the depth of my life journey,” Barnett told lawmakers, “yet those who control it hold the power to mimic the likeness of my art, replicate it, and falsely claim my identity and intellectual property.”
Artists, she added, have historically been the first group affected by major technological advancements, and the issues they face regarding AI and deepfakes are a portent of things to come for the general public.
Barnett pushed Congress to move swiftly.
“We must get this right,” she said. “You must get this right, before it’s too late.”
Robert Kyncl, CEO of Warner Music Group, agreed with Barnett’s view, pointing out that music and musical artists have “so often been the canary in the coal mine for broader trends in our society,” such as the development of AI tools.
Kyncl said lawmakers should both encourage artist creativity with new technology while still protecting their rights and livelihoods.
“Unfettered deepfake technology has the potential to impact everyone,” including lawmakers, he said. “Your identities could be appropriated to mislead your constituents.”
As far as the proposed deepfake legislation goes, the Warner Media executive suggested that the law should allow people to license their likeness to third parties on market terms. Any legislation should also strike a balance between upholding First Amendment principles while still establishing consequences for people or platforms that knowingly violate property rights.
Kyncl joined Barnett in urging Congress to act, telling lawmakers they should pass legislation “before the genie is out of the bottle.”
Other witnesses, meanwhile, were more cautious about Coons’ proposed legislation, offering some words of support but warning senators not to tread on free speech protections.
Ben Sheffner, senior vice president and associate general counsel for the Motion Picture Association, called the bill a “thoughtful contribution” but said lawmakers will need to be careful to regulate AI without creating a chilling effect on its legal uses.
There is promise in using AI tools to enhance the filmmaking process, Sheffner said, and regulations that are either too strong or unclear might dissuade producers from taking advantage of these new technologies. He suggested that Congress should primarily focus on protecting the rights of living performers and that lawmakers should clearly define the term “digital replica” to mean highly realistic depictions of people rather than cartoons or other similar renditions.
Graham Davies, CEO of the Digital Media Association, added that AI regulations should be specific and targeted to avoid unnecessary litigation over the limits of the law. The current version of the proposed bill, he worried, “punishes good and bad actors alike.”
Any legislation addressing the use of deepfakes or digital likenesses should dial in mainly on the creators of unauthorized deepfakes, Davies said.
Kyncl, for his part, pushed back on the argument that congressional efforts to regulate deepfakes raise free speech concerns. He pointed out such technology can be used to put words in people’s mouths or depict them doing things they didn’t consent to.
“That is not free speech,” he said.
Coons said Tuesday that his measure is careful to balance protections against AI deepfakes with free speech rights. The bill includes exemptions for long recognized protected speech such as parody and satire.
“The First Amendment will, of course, apply to this bill whether we say it does or not,” he said.
Coons added that he was happy with the discussion his draft had fostered between stakeholders, including those who opposed its provisions.
Tuesday’s hearing is part of an ongoing effort on Capitol Hill to get out in front of AI regulation as the technology grows by leaps and bounds. Lawmakers have expressed a desire to get their arms around artificial intelligence as quickly as possible and have introduced a flotilla of legislation aimed at regulating its effects on elections, intellectual property and scam attempts, among other things.
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