clock menu more-arrow no yes

Filed under:

How Utah's example led other states to address pornography and where the fight is headed

In a Tuesday, April 23, 2019, file photo, film star Scarlett Johansson appears at a hand and footprint ceremony at the TCL Chinese Theatre in Los Angeles.
In a Tuesday, April 23, 2019, file photo, film star Scarlett Johansson appears at a hand and footprint ceremony at the TCL Chinese Theatre, in Los Angeles. Johansson, who has been the victim of deepfake pornography, has said it's a "useless pursuit" to try to make it illegal. But some legislators are still trying.
Willy Sanjuan, Invision/AP

SALT LAKE CITY — When Utah passed a resolution declaring pornography a public health crisis in 2016, it was the first state to do so.

Now 15 other states have passed similar proclamations, Governing magazine recently reported, making Utah the de-facto leader in legislative efforts to call attention to pornography's effects.

But legislative attempts to control pornography may soon have as much to do with fake images as with real people.

Virginia recently made it a crime to create and distribute "deepfake" pornography that is created by merging an image of someone's face with pornographic video of someone else. And some people are warning that other states should address this growing problem quickly.

"The pace of this technology, which is improving at an astonishing rate, has left state and federal lawmakers flat-footed. Victims of deepfaked revenge porn often don’t have recourse because it’s not covered by current law," wrote Kirsten Korosec on the technology website Techcrunch.com.

The actress Scarlett Johansson, who has been the victim of deepfake pornography, has said it's a "useless pursuit" to try to make it illegal.

"There are far more disturbing things on the dark web than this, sadly," Johansson said in The Washington Post.

But some legislators are trying. Last year, U.S. Sen. Ben Sasse, R-Nebraska, introduced a bill that would make it illegal to create or distribute deepfakes, and New York has considered a bill that would make it illegal to create and distribute video of people without their consent, a measure that would protect people after death.

Here's what's new in the fight against pornography and how Utah emerged as a leader in legislative efforts.

Children at risk

In her report for Governing magazine, Mattie Quinn talked with Utah state Sen. Todd Weiler, R-Woods Cross, who explained how he was approached by the National Center on Sexual Exploitation about drafting a resolution on pornography as a public health crisis a few years ago.

“They told me, 'If you can pass this, we can get this passed in 15 more states. We just need one legislator to stick his neck out,'" Weiler said.

The strategy worked.

Governing magazine reported July 19 that in the two years since Utah approved its resolution, these states passed similar ones: Arkansas, Arizona, Florida, Idaho, Kansas, Kentucky, Louisiana, Missouri, Montana, Oklahoma, Pennsylvania, South Dakota, Tennessee and Virginia.

And Ohio has a resolution pending that says pornography has contributed to the hypersexualization of children, can lead to human trafficking and was a factor in the predatory behavior that led to the #MeToo movement.

The National Center on Sexual Exploitation, which lobbies for tougher enforcement of existing federal obscenity laws, says pornography, combined with technology, has resulted in an "unprecedented epidemic of sexual harm."

"Children are at greatest risk as research shows such exposure affects their developing brains and shapes their sexual templates," the center's website says, explaining its campaign to get the help of government, corporate and opinion leaders in addressing the problem. It also says pornography is "potentially biologically addictive."

Governing took a more measured view, with Quinn reporting that there are "not many" studies on pornography's impact. "The Centers for Disease Control and Prevention doesn’t have a formal stance on it, and watching it isn’t considered addictive behavior by the American Psychiatric Association," Quinn wrote.

The Center on Sexual Exploitation, however, links to multiple studies that have shown deleterious effects of porn, to include reduced satisfaction with one's partner and increased sexual aggression.

Researchers from Brigham Young University have found that viewing pornography can result in "increased moral disengagement," with consumers of porn more likely to engage in unethical behavior in business settings.

And Quinn wrote that "there is some research that shows negative mental health impacts of viewing a significant amount of pornography over time." She also notes that the experience of porn for children today is much different than it was a generation ago.

"The current generation's first interaction with scintillating images are of hardcore sex acts watched online," she wrote.

Jennifer Johnson, associate professor and chair of sociology at Virginia Commonwealth University, told Quinn that trying to restrict porn is a "losing battle politically," recommending instead that pediatricians and parents talk to children about pornography and its effects.

But Quinn found the legislative battle didn't stop with the public health resolution. Other bills that became law allow people to sue porn distributors for harm to minors, and one measure requires internet providers to show consumers filtering technology available to them.

The newest threat

Johansson, whose credits range from 1998's "The Horse Whisperer" to this year's "Avengers: Endgame," may be the most famous woman to be a victim of deepfake pornography, but the threat isn't limited to celebrities.

Writing in the Huffington Post June 19, technology reporter Jesselyn Cook described the experiences of six American women who were shocked to learn that they were the subject of pornographic videos created with deepfake technology. The women have no legal recourse since they have no way of knowing who created or posted the videos, and "there's almost nothing you can do" to have the videos removed, the report said.

The videos are made by people who operate on the dark web and accept only Bitcoin and other cryptocurrencies that can't be tracked. One Greek man that Cook interviewed makes and posts deepfake videos for $40 or less.

In addition to being pornography, some also see deepfake videos as a kind of digital rape.

"Women can tell men, ‘I don’t want to date you, I don’t want to know you, I don’t want to take my clothes off for you,’ but now men can say, ‘Oh yeah? I’m going to force you to, and if I can’t do it physically, I will do it virtually,’” Mary Anne Franks, a law professor at the University of Miami and president of the Cyber Civil Rights Initiative, told Cook, adding that any woman who has a picture of herself on the internet is vulnerable.

“There’s nothing you can really do to protect yourself except not exist online," Franks said.

Writing in The Guardian last month, Simon Parkin explained the technology behind deepfakes, whether the videos are pornographic or not, and whether they are made to get revenge on a former lover or to embarrass a politician (as happened to House Speaker Nancy Pelosi). The forgery, he writes, is enabled by programs that algorithmically "transpose the 'skin' of one human face on to the movements of another — as if applying a latex mask."

Seeing this done to your body is horrifying, a victim of deepfake pornography said in the Huffington Post, and it's much different from seeing a still picture that has been digitally altered.

“When it’s Photoshop, it’s a static picture and can be very obvious that it’s not real. But when it’s your own face reacting and moving, there’s this panic that you have no control over how people use your image," said the woman, who lives in Texas. The fake video is still online and identifies her as "Kate," her real name. It has tens of thousands of view, the Huffington Report said.

So far, the effort to address deepfake videos through legislation is piecemeal and addresses different aspects of the problem. For example, in response to the deepfake of Pelosi, a California assemblyman introduced a bill that would make it illegal to introduce a "deceptively edited" video or image of a candidate 60 or fewer days before an election, Government Technology magazine reported.

Opponents of pornography laws defend its dissemination on the grounds of America's cherished value of free speech. And some people argue that new laws aren't needed for deepfakes, just enforcement of laws we already have.

In a blog post for the Electronic Frontier Foundation, David Greene said sweeping laws would make it illegal for people to use the technology in benign ways, such as making parodies.

"The knee-jerk reaction many people have towards any new technology that could be used for awful purposes is to try and criminalize or regulate the technology itself. But such a move would threaten the beneficial uses as well, and raise unnecessary constitutional problems," wrote Greene, senior staff attorney and civil liberties director for the foundation.

Johansson and other people who have been depicted in deepfake pornography could, for example, find legal relief in laws against extortion, harassment, copyright infringement or intentional infliction of emotional distress, depending on the circumstance, Greene said.

Virginia went after deepfakes by making a change to an existing law making it illegal to disseminate "revenge porn" — pornographic images or video that might have been made with consent, but were distributed without consent in order to harm the person.

The amendment adds deepfakes to the descriptions of videos and photographs covered under the bill.

Demonstrating that deepfakes are a global problem, Virginia's legislation even drew media attention in the UK.

"We must overhaul our out-of-date and piecemeal laws, including criminalizing the paralysing and life-threatening impact of threats, and recognizing the significant harms of fake porn," Clare McGlynn, a law professor at Durham University in England, told the BBC.