Cruz Supports Durbin’s Right of Action in Deepfake Porn Bill

Cruz and Durbin are seeking support for two separate bills that would establish legal recourse for victims (see 2406180069). Durbin’s bill, the Disrupt Explicit Forged Images and Non-Consensual Edits (Defiance) Act, co-sponsored by Senate Majority Leader Chuck Schumer, D-N.Y., would establish a right for victims to seek civil damages. Cruz’s bill, the Immobilizing Technological Deepfakes on Websites and Networks (Take It Down) Act, introduced with Sen. Amy Klobuchar, D-Minn., would establish criminal liability for those publishing nonconsensual intimate imagery, including deepfakes. Cruz’s bill would also require platforms to remove nonconsensual, explicit content within 48 hours of a victim’s request.

The two bills are “complementary,” Cruz told us in response to a question about potentially combining the proposals. They “fill different spaces,” he added. Durbin’s “bill is creating a civil cause of action. I’m supportive of that. My bill is filling a different need. ... Right now, Big Tech companies ignore the victims, and the bill I introduced is the only one that gives victims the right to get material pulled down.” Cruz opposes a private right of action in comprehensive privacy legislation (see 2404150059).

Durbin told us it’s important to empower individuals. “The obvious question," Durbin said, "is how do you assert your right as an individual for protection?” Durbin had not yet closely reviewed the Cruz-Klobuchar proposal.

Durbin failed when he sought unanimous consent for the Defiance Act on the Senate floor last week (see 2406180069). Sen. Cynthia Lummis, R-Wyo., a co-sponsor of Cruz’s bill, blocked Durbin’s attempt largely because of the potential liability the legislation would impose on unknowing social media platforms. Lummis told us she’s working with Durbin to tighten the bill’s definitions and that merging the two measures is possible. If Durbin’s bill “is tightened, I’ll lift the hold,” she said. “Because it’s a real problem, and we want to address the real problem” without imposing liability on platforms that don’t know they’re hosting such content. After Lummis blocked UC, Schumer’s office issued a statement saying he would continue pushing for passage of the Defiance Act.

Sen. John Hickenlooper, D-Colo., said it wasn’t a difficult decision to support the Cruz-Klobuchar bill. “By almost any moral sensibility,” deepfake porn should be illegal, he said. “It’s certainly immoral, and what we’re trying to do is make what’s grossly immoral also illegal.”

First Amendment questions are at issue, said Sen. Thom Tillis, R-N.C., who hasn’t signed onto either bill. Legislators “absolutely” must keep AI manipulation under control, but there are open legal questions about approaches, he said.

Sen. Mike Rounds, R-S.D., said the Senate AI working group (see 2405080051), which Schumer leads, has addressed the issue. There’s always been “fake porn,” but AI can create more realistic-looking content and share it much faster, he said: The question is whether legal tools have kept pace.

Senate Intelligence Committee Chairman Mark Warner, D-Va., has discussed that deepfake manipulation has “skyrocketed,” noting its particular impact on minors, who are often victims of sex-related extortion. Legislative action is needed, he said, though he hasn’t closely studied the bills. “The notion that we would again suddenly do nothing would be awful.”

There’s consensus on legislation on improving transparency so users know when they’re viewing synthetic content, Sen. John Kennedy, R-La., said. He introduced the AI Labeling Act with Sen. Brian Schatz, D-Hawaii, (see 2310240057). They had a recent conversation with Schumer about prospects, Kennedy said. Deepfake technology is a broader issue than porn, Kennedy said. Cruz announced a Senate Commerce Committee field hearing on the topic, which is scheduled for Wednesday in Dallas.