If you have photos or videos on the internet, your face may be free game for porn.
In December, a Motherboard article described a machine learning algorithm which uses an open-source code and easily accessible online materials to create realistic face swaps on video. A Redditor by the name of 'deepfakes' is the mastermind behind porn videos with celebrity faces swapped into the bodies of performers.
The faces can look very convincing to the untrained eye and that can be scary to anyone who's floating around on the internet, which is most everyone nowadays. There are videos featuring Gal Gadot, Taylor Swift, and Game of Thrones star, Maisie Williams.
Another Redditor even created a user-friendly app for people with no knowledge of computer science to use, according to Motherboard. While the technology isn't as advanced as movie studio special effects, the results are still troubling.
'Deepfake' porn took off after being made available to the average user and Reddit has since banned the face swap pornography subreddit page. The site also updated its policy to prohibit users from posting "involuntary pornography", including images that have been faked.
Other sites, including Twitter and Pornhub also told Motherboard they were banning deepfake porn. The gaming site Discord and GIF maker Gyfcat banned the use of the fake pornography as well.
While many websites have banned the use of deepfake porn and the majority of videos featured celebrities, the idea of the technology still poses a threat to the average person. After all, almost anything is possible to recreate on the internet and once it's released online, it's nearly impossible to completely scrub it from the web.
So, what can the law do to protect you from a porn face swap?
In short, not much.
Cases of face swap porn have yet to make it to courtroom since it is a relatively new phenomenon to the general public.
The most similar Supreme Court case to deepfakes is Ashcroft vs. Free Speech Coalition, where the Free Speech Coalition, an adult-entertainment trade association, filed suit claiming the Child Pornography Prevention Act of 1996 (CPPA) violated First Amendments rights.
The coalition claimed the CPPA was overbroad and vague in their wording of what type of altered images were prohibited. The Court upheld the claim and the Act has since been amended.
However, the ruling above pertains specifically to child pornography and makes no mention of protection for adults.
"It's really hard to say [what laws are available] especially since there have been no decisions dealing with this," said Carlton Larson, a UC Davis professor who specializes in constitutional rights.
If a face swap porn victim wants to claim copyright infringement, it would be difficult mainly because the individual whose face is used likely doesn't own rights to the actual porn video. Fair Use laws can also be used an exception to copyright infringement suits, according to Larson.
Fair Use laws allow copyrighted work to be used as a freedom of expression under certain circumstances. This generally covers parody or work that isn't supposed to be taken seriously. A person can argue a face swap isn't intended to depict the actual person but is rather being used as a joke or for fun. A copyright infringement lawsuit would be especially hard to fight if a person only has a video for their own amusement or on their private computer, Larson explained.
California's "revenge porn" laws specifically refer to the intentional distribution of the image of "the intimate body part or parts of another identifiable person" or an image of the person depicted engaged in sexual acts.
Anupam Chander is also a professor at the UC Davis School of Law and specializes in cyberlaw. Chander explained his take on face swap porn legality via email:
"Having your face used for pornography without your consent is invasive and outrageous." he wrote. "While it has not been tested, the revenge porn laws don't seem to be written for this scenario because they are about real, not faked, intimate images of you. It is not clear whether existing identity theft, fraud, or privacy laws would cover this scenario either."
In other words, although the person hasn't consented to be in the video, their body parts technically are not in the image.
Although not tried as Chander said, privacy laws likely wouldn't cover face swap pornography for similar reasons -- the person whose face image is used isn't really in the video.
While deepfakes are still the unknown in the legal world, there are routes you can take to try your luck.
"The best you can hope for is to prevail on a libel claim," Larson said.
Defamation covers any statement that can hurt a person's reputation or public image. Libel is written or published defamation. However, a person would have to prove the act caused injury and is not stepping on freedom of speech laws. This may be easier for celebrities and public figures to do than a private citizen.
There are also other deep issues with the AI-assisted face swap technology. Just as easily as a person can create a face swap in a porn video, faces can be swapped in other videos such as political speeches or news stories. It could create a whole other wave of fake news and may make it harder to make out the real from the fake.
Some internet platforms have already started to combat the use of face swap porn by banning it from their sites but we have yet to see if any legal repercussions will be seen as a result of the trend.
"It may be useful for legislatures to take a look to see if the laws are adequate," Chander said.
