Preventing Deepfakes from Deceiving Trials: A Look at Possible Solutions
In the digital age, the rise of deepfake technology has raised concerns about the authenticity of evidence in U.S. court proceedings. A computer science professor, V.S. Subrahmanian, recently tested the performance of four deepfake detectors and found that they labeled between 71 and 99 percent of fake videos as real [1]. This alarming finding has prompted calls for changes to rules governing court evidence.
Two experts, Maura Grossman and Paul Grimm, have proposed giving judges greater authority to assess the authenticity of AI-generated evidence [2]. Under their new rule, a litigant challenging the authenticity of evidence would have to provide sufficient proof to convince a judge that a jury 'reasonably could find' that the evidence had been altered or fabricated [3]. If accepted, this rule would require stricter validation standards and disclosures, aiming to address the deepfake issue head-on.
However, the Advisory Committee on Evidence Rules has chosen not to move forward with any proposals aimed at deepfakes [7]. In Arizona, a state court workgroup is considering whether there's a technological solution to the deepfake problem that courts could quickly implement [8]. Judge Pamela Gates is chairing this workgroup, examining how to handle AI-generated evidence.
Academic researchers, government forensics experts, and big tech companies are in an arms race with generative AI developers to build tools that can detect fake content or add digital watermarks [9]. One proposal suggests that a party claiming AI-generated evidence should obtain a forensic expert's opinion [4]. Delfino also proposes that the party making the deepfake allegation should pay for the forensic expert, making it costly to falsely cry 'AI detector' unless the judge determines that the party doesn't have sufficient financial resources [5].
So far, there have been few publicized cases where courts have had to confront deepfakes or claims that evidence was AI-generated [10]. In a case in Pennsylvania, a woman accused of criminally harassing members of her daughter's cheerleading team with deepfaked videos had her charges dropped after a team of forensic experts determined the videos were real [11].
The explosion of cheap generative AI systems has also highlighted the need to protect juries from the opposite problem: litigants who claim that legitimate evidence is fake [6]. Jurors find audio-visual evidence convincing and hard to forget, and exposure to fabricated videos can convince people to give false testimony about events they witnessed [12]. Jurors who see video evidence are more than six times as likely to retain information than if they just heard the testimony [13].
Any changes to the federal rules of evidence would take years to be finalized and need to be approved by various committees and the Supreme Court [14]. The quest for courtroom integrity in the face of deepfakes is a complex and ongoing issue, but one that is crucial for maintaining the fairness and credibility of the U.S. legal system.
References: 1. Deepfake detectors fail to spot fakes in test 2. Grossman and Grimm propose rule changes to address deepfakes in U.S. court proceedings 3. New rule proposal would empower judges to exert a stronger gatekeeping role over evidence 4. Delfino's proposals for handling deepfakes in court 5. Delfino proposes that the party making the deepfake allegation should pay for the forensic expert 6. Protecting juries from false deepfake claims 7. Advisory Committee on Evidence Rules chooses not to move forward with deepfake proposals 8. Arizona state court workgroup examining how to handle AI-generated evidence 9. The race to detect deepfakes and add digital watermarks 10. Few publicized cases where courts have had to confront deepfakes or claims that evidence was AI-generated 11. Woman's deepfake charges dropped after forensic experts determine videos were real 12. Exposure to fabricated videos can convince people to give false testimony 13. Jurors who see video evidence are more likely to retain information 14. **Any changes to the federal rules of evidence would take years to be finalized
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