S.B. 256 Identity Protection Modifications: transcript

Thank you. So, artificial intelligence and deepfake technology have fundamentally changed how identif identity can be misused. And Utah already addresses this on two ends of the spectrum. One, if somebody, uh, uses your name, image, or likeness for commercial misuse, we passed a bill, I think just last year that allows for an action against that by, by the person whose identity is being misused. And then you can go to the common law claim of defamation. And we, we actually have statutory language on defamation two, which would include libel and slander. And you can use that. What this bill does is it, it says defamation type actions are available even if it's the use of ai. But what what this bill, the, the intent of this bill though, is to address this middle ground for non-commercial deep fakes that may not meet the technical elements of defam defamation, but still cause real harm, including reputational harm or personal distress. So because of DeepFakes, we have this, this kind of new area of law where somebody could post something, it looks like it's the person who's actually saying something. It could cause reputational harm, but not actual. You, you might not be able to actually monetize that, which is a requirement. You gotta establish damages for defamation. And so there's not really a legal recourse for that. And so this, this bill attempts to find that legal resource. It's important to note this does not ban AI or creative, uh, expression. Um, it creates procedural safeguards. So it, it requires a notice and take down requirement before filing a lawsuit. And then it limits damages if, if it is properly removed. It strengthens identity protection by recognizing exclusive right in your own personal identity, your name, image, and likeness, including unauthorized identity replication. Um, uh, it expressly it's important to note that you have to navigate first Amendment rights here, right? And so it expressly exempts and preserves news, reporting, commentary, parody, satire, political speech, and transformative works. Transformative works would be like movies or TV shows or, or documentaries, stuff like that. And so it's, the bill is intentionally narrow. It targets unauthorized misuse, not criticism, parity, or public discourse. And I acknowledge that this is new legal territory. Uh, states are exploring this right now, how, how to, how to navigate this. But, um, uh, this bill reflects significant input from legal scholars and practitioners. It's a good faith effort to address this kind of middle area that's not really in the law right now. And yeah, so I'm open to any questions.

Thank you, Mr. Chair. Not necessarily a question, but a comment. I, I see the, uh, the tremendous damage that this deep fake is leading to. It's, it's, it's scary. We have an election coming up in three years, a presidential election. And if there's no way to control this, we will not be voting for the person who's best president, but the least repulsive is who we're gonna be voting for. Uh, and, and I say all sides of the aisle, everybody will be involved in this, and we will be in chaos. So, I, I applaud you for your bill. I think, I think we need to do everything we can and look forward. Uh, it, it certainly has the ability to cause chaos in the world. So thank you for taking the lead on this.

Uh, thank you Mr. Chair. Thank you. Members of this committee. Uh, it's always a pleasure to be able to virtually testify, uh, on behalf of the Libertas Institute based out of Lehi, Utah, and just frequently on the road. So today I'm testifying from San Francisco. Um, and today, I, I don't want to register other for or opposition for this bill. I'd rather just present to the committee some concerns, uh, with the bill to, you know, just get the, get the thinking going and, and get the thought out. Um, there are three, three things this bill, that I wanna bring up. First, we have concerns that this could be a chilling effect on AI content creation that's similar to slap suits, right? A strategic lawsuit aimed at preventing public participation. Um, I think I got that right. Maybe I did. Either way, this, this could end up being something where the powerful sue those who make AI content about someone else, not because there's a good case, but because there's enough of a case to make the case. And it's more about settling because you have deep pockets versus actual cases, right? So that there's an issue there that we would like, uh, to, you know, at least address here. Another piece of this, we're concerned that extending personal property rights like this, uh, same like you would with IP law, could go too far. It might be unworkable in terms of consent. But finally, I do wanna say the defamation piece in section one on its own, I think is worth consideration. And I would love to work with the sponsor on this piece, uh, moving forward. Thank you for the time.

Uh, Mr. Chair, members of the committee, thank you so much for, um, giving me the time to speak today. Uh, my name's David McGarry. I am the research director at the Taxpayers Protection Alliance. Um, I wanna begin by thanking the sponsor and thanking the committee for their careful consideration of these issues. They are exceedingly complex into a great degree. They are also very novel, given the new technologies that we confront in the 21st century. But as we confront those technologies, I think it's important to remember that, um, that this is a matter of finding balance. And I, I think, um, while I will also, like Mr. Rosenbaum, neither oppose, nor nor support the bill today, I think there are certain, um, parts of this bill that could be cause for concern. Um, the, given the, uh, given the, the construction of the personal property, right, which even extends after the death of the individual, um, there is a good chance that this bill could, um, chill perfectly to benign uses of technology and content creation. Um, and given some of, especially given some of the vagueness in the, uh, in the exemption section with respect to content pertaining to the public interest or content having, uh, newsworthy value, quote unquote, I also have concerns that this bill could in complete opposition to the intentions of the sponsor and the committee prove to be a boon for trial lawyers. And with that, I will thank you for your careful consideration of these issues once again, and the opportunity to speak today.

Gosh, uh, thank you Mr. Chairman Yep. For the opportunity to be with you today. Um, my name is, uh, Bryce Schenalt with the Abundance Institute. I'm sorry that I, or better yet, one of my colleagues could not be there with you in person. Um, uh, we appreciate Senator ER's de CU Moore's dedicated effort on this thoughtful legislation. It's, uh, a very difficult task that he's, um, wor focusing on here. And we share the intent of the legislation of not wanting harms to be caused by deep Bates and other related content online or otherwise. I enjoyed listening to Senator Keller Moore's inter introduction now and also during his Senate Judiciary Committee back on February 9th. And I find myself nodding and understanding an agreement with much of what he had to say, including the point that I know you had made previously, that existing law may likely address the concerns at hand, um, both at the state and federal level. Congress recently passed the Take It Down Act as an example. We also have 30 years of experience under the Digital Millennium Copyright Act, or DCMA with a notice and take down system for online infringement. One concern we have is that it may incentivize platforms, chilling speeches, as was just noted. I know there are exemptions for items like satire, but platforms seeking to mitigate risk may default to pulling content down that should not, or may not run a file of this statute or any other law. This could be exacerbated by people abusing the system, like has been observed under the DCMA and flagging content that may, they may just disapprove of for any number of reasons. Um, thank you for your time and, uh, we think courts are well situated, situated to handle these cases. And, um, we look forward to working with the bill sponsor. Great. Thank you very much.

Was just outta the room. Maryanne Christensen, executive Director of Utah Legislative Watch, and I am here to speak in favor of this bill. I don't get on Facebook very often, but when I do, almost everybody who, who sends me a follow request says that they're a content creator. And right now it's just the wild, wild West out there. And people, as they're trying to get followers and clicks and likes, they are pushing the envelope more and more and more. And we're becoming victims of that. I know I have several friends who have, are victims of video manipulation because of political reasons here in the state of Utah. It is happening now. There's no recourse for it. It's gonna be happening to our kids more and more. Um, our kids are sometimes really flat, fragile when they're put into those kinds of situations. We, we just need to pass these protections. So thank you for voting. Yes,

I just wanted to run through scenario, make sure I understand the effect of this. So, previously at a conference that some of these people, uh, some of the people in the room attended, I had a, I used Parrot AI to create a video of, of Mark Zuckerberg, uh, talking about, uh, one of the, uh, point of our state indoors digital identity. And in the case that Mark Zuckerberg was unhappy with my, it was meant to be a parody or a joke, but in, if, if he were to be upset with that, my understanding is, and claim slander or claim something, he would have to provide me notice of this. And then his only recourse would be actual damages, which he would, I mean, what he'd have to come up with some actual damage that, for somebody making a joke about him on in a conference, is that, do I have a correct understanding?

Yeah, but I, even that, I think you're taking it to the extreme because the intent is that somebody has to post something with the intent that they're actually, that people would believe it was actually them, and leaving it there without noting before or after that it's actually parody or something like that. And so if you put that out there with the intent of, of painting somebody in a bad light without noting that it's not actually them or parody, then, then that's, you wouldn't even get to that cause of action without overcoming that first part. But yes, otherwise, you're correct.

Thank you, Mr. Chair. I'd like to make a motion that we favorably, uh, forward to the house SB 2 56. 2 56.

I'll waive. Okay.

And appreciate the motion. And some of the, uh, comments are, are noted that this is kind of a new area of law, like, like a lot of things we do up here. It, it may not, this isn't etching it in stone. There may, there may be opportunity to revise it this session, but certainly over time as we see this develop, then I'm sure we'll be back here. Great.

I just think it's a good policy to move forward. I think we need to pay attention to it. It's, uh, it's real. It's here, so I, I appreciate the timing of it as well.

Alright, thank you chair. So, AI and deepfake technology have fundamentally changed how identity identity can be misused, uh, in Utah law. We already addressed this on two ends of the spectrum. So last year, I think it was just last year, we passed a bill that addresses commercial misuse of a person's name, image, or likeness through and exists through law for abuse of that personal identity. Uh, then we also have common law and statutory defamation, which includes libel, slander. And in this bill we make it, it, it arguably already applies to ai deep fakes. But then in this bill we make it explicit that content that is created by AI is also subject to defamation. What this bill addresses though, is the middle ground. So non-commercial deep fakes that may not meet the ne the technical elements of defamation, but still cause real harm, reputational injury, or personal distress. Um, defamation law requires provable falsity and damages, which can be often difficult to prove, difficult to establish, and even more difficult in online environments. And this leads victims without meaningful remedies even when harm might be obvious. Uh, non-con, non-commercial deepfake also undermines trust damages reputations causes emotional and professional harm, and, uh, doesn't really fit neatly into traditional tort frameworks. So, without legislative guidance, courts are left to analogize 20th century doctrines to 21st century technologies. So what this bill does, it does not ban AI or creative expression. It clarifies that defina, again, defamation law applies equally to AI generated and digitally manipulated content. It creates procedural safeguards, a notice and take down requirement before filing suit limited damages if content is prompt, is promptly removed. And then it strengthens identity protection by recognizing and exclusive property, right? And personal identity, and including unauthorized identity replication and traffic trafficking and identity, identity replication tools. It expressly preserves news reporting, commentary, parody, satire, political speech, and transformative works. So we, we need to protect First Amendment rights, right? And so we're trying to, we're trying to thread this needle and recognize that stuff and trying to make this intentionally narrow so it targets unauthorized misuse, not criticism, not parody or public discourse. And it provides clear exemptions for those things along with newsworthy content, public affairs, political expression, and artistic and transformative works. So I recognize there, there are some new legal theory theories in this bill, and we're trying to navigate this. We've had a lot of good legal minds look at this and, and suggest this law. I recognize there are, we're gonna need to work on this bill. And part of the reason why I numbered it was so that we could start getting input. For example, I've got some input from the Motion Picture Association that would like, um, some language in there that would protect artistic use and, and also registry of that, uh, name image likeness property, right? So we, we will look at that, um, That, uh, that Dunking Donuts commercial in the Super Bowl looked like it had a lot of AI going on. So I don't know if you saw that. I Don't remember that one. But It had like Rachel from friends and all of the Oh, yeah, yeah. Okay. They were all younger. They were all back. Yeah, I bet you they paid for those in I Yeah, I'm sure they'll, So yeah. So again, new, new legal ground on this, willing to continue to work on it, but wanted to start the conversation, establish the proper guardrails and, uh, invite, invite refinement. So, Okay. Thank you. Does that conclude your presentation? It does, yep. Alright, thank you.

What's that? Well, it's one of the identity bills.

Maryanne Christensen, executive Director of Utah Legislative Watch, and I am loving this bill. I read it and thought, wow, this is a great bill. And as I read through it, I be, I got really excited about it. It, um, it's really important that we are able to protect ourselves in, in a whole brand new way that we didn't even have to think about just a, a decade or two ago. This bill is super important for us being able to do that, and I, I really appreciate the part where it allows us, it allows our successors to also protect our identity even after we're gone. Um, the reason why I really love that is because after Charlie Kirk was assassinated, and there were people who were creating content of murdered Charlie, Charlie Kirk and selling it for money, and I was so upset that they were able to do that, and there was nothing in the law that could prevent that. And so this bill is really important on several fronts, and so thank you so much for voting for it.

Yeah, no worries. Thank you. I'm Seth Stewart, representing myself from American Fork. Um, I have a couple of, uh, significant concerns about this bill. One is, is the fact that it, uh, purports, I guess to create a 70 year, uh, kind of a perpetual property, right? Kind of akin to our existing, uh, copyright laws. And maybe it's, uh, maybe it's a strange concept to say that your, your likeness, your personage can be, can be copyrighted. Um, so I would urge some reconsideration of that, whether that's, uh, justified in any way. Uh, but secondly, um, there's a specific prohibition in the bill, um, on line, let's see, sorry, I'm just looking it up right now. But it's, uh, yeah, line 63 that there's actually a, a blackout window of 10 days. There's a, there's a takedown period that's actually, um, mandatory. I don't think that should be mandatory, that someone can put up some, uh, falsified information and then be able to withdraw it later without legal consequences. For example, during an election timeframe, this could be used to defame candidates and alter election outcomes and then withdraw the material within the 10 day window. And, uh, supposedly, you know, escape, skate free, you know, consequence free in that regard. So I, I would urge a, a bare minimum deletion of, of that, uh, mandate. 'cause that's, uh, that's binding the, uh, the civil Juab jury in that case to, uh, to decide a certain way when in fact there there could be liability claims that are valid and admissible and real damage is done. So I would urge deletion of that portion at the very least, and, uh, just generally oppose the bill. Thank you.

Yeah, thank you, chair. Um, again, I'm open to further discussion on this and, and hopefully get some, get some good minds to look at this and offer some suggestions. But with that, I recommend that we, or I'll make the motion that we favorably recommend SB 2 56.

Yeah, just real quick, I think, I think this is one of those new developing areas of law. I think it does need some help around it. I appreciate, uh, the sponsor bringing the bill forward. I think we can continue to refine it because it's unique and I think we need some, some additional protections in this space, especially with ai. Uh, you know, it's, it's, uh, uh, it's definitely a, an evolving area of the law and I, and I would like to see it move forward. And so for that, I'll be voting yes. Thank you.

Changes we, we had previously put in a property, right? We, we said it's not a property, right? It's just a general right. And I'll explain the bill here in a minute. Um, and so some of this is, uh, technical and then it's, uh, um, it, it got rid of a potential need for a registry of this right. For your name, image, and likeness that, that you, that could be created through artificial intelligence. Thank you. So I'll place the motion.

Yeah. Thank you. So, AI and deepfake technology have fundamentally changed how identity identity can be misused. And Utah law already addresses two ends of the spectrum. So we address the commercial misuse of a person's name, image, or likeness through existing cause of action. And I think we passed that bill last year. And then the, the common law, which we've also, uh, put into statute, the common law claims of defamation, including libel and slan slander, which already applies regardless of whether content is created by AI or not. So this bill addresses what we, what we think is kind of a new middle ground, non-commercial deep fakes that may not meet the technical elements of defamation, but still cause real harm, reputational injury or personal distress. So imagine, uh, a publicly known figure and somebody creates a deepfake of them saying something that is just completely not true and it doesn't quite rise to the level of defamation and they don't really commercialize it. What can you do about that? Do you have, do you have the right to take it down or anything? And I think there's a gap in the law there. Um, and the reason being, and, and they could do that to you or your neighbor. You know, your neighbor poses something that is really unfavorable to you or causes reputational damage, but it doesn't cause you actual substantive monetary damage. Defamation law requires provable falsity and damages, which are often difficult to establish, uh, particularly in a fast moving online environment and leaves victims without meaningful remedies. And a lot of, a lot of times, or oftentimes these could be non-commercial deep fake contexts, which wouldn't give you that cause of action either. So, this, this bill is obviously does not ban AI or creative expression. It creates, uh, it clarifies that def first it clarifies that defamation laws equally apply to AI generated and digitally manipulated content as it would just for any other previously recognized content. It creates procedural safeguards. So there, there's a notice and take down requirement before filing a lawsuit, and then it limit limits damages if that content is properly removed. Uh, it strengthens identity protection by rep, by recognizing an exclusive right in your name, image, and likeness, including unauthorized ID identity replication and trafficking and identity replication tools. So we've navigated this in a way that, uh, recognizes First Amendment rights and we've, uh, expressly preserved news reporting, commentary, pre parity, satire, political speech, and transformative works, which is the legal word for basically if you are doing something in a movie or a documentary or something like that, but you're not representing that this is actual and true, but it's just a, a movie representation of somebody that would not get, uh, caught up into this, this bill. So we've, we've tried to, we've tried to find that careful balance between free speech and, and what, what can be used and, and then the unauthorized misuse. Uh, so with that, um, looking for any questions or further explanation, I'm happy to give and, and looking for your support on this kind of middle area of new, new law that we're treading with, with the ability of AI and deepfake.

Vote. Senator Vickers Spery Lein Bramer bus Comore Escamia Fillmore Grover Harper Kins Ipson Johnson Juab McKay Mikel Milner Musselman Owens pitcher Plum Rebe Sandal Stevenson Stratton pickers ler Wilson

Aye. Winterton

Aye. President Adams aye.

Yes. If I might, another motion to encircle Senate bill two 17.

Motion to delete title and Body of Senate bill two 17.

This, this meets the middle ground. We already have a law that deals with commercial misuse. Somebody that tries to monetize your NIL you, that's actionable and defamation, which is a longstanding statutory and common law claim. The problem with defamation is that it can be difficult because you have to demonstrate actual damages. And, uh, in the fast moving pace that we have with online, that might be difficult to do and somebody could put up a deep fake and, and use, use somebody else's name, image, or likeness. And it can cause serious damage, reputational harm, but you might not be able to actually put a dollar figure to that which undermines your defamation claim. So this, this creates that new middle ground. It, um, it clarifies that defamation law. First, it clarifies that defamation law applies equally, whether it's AI generated or just a traditional defamation. Uh, it creates procedural safeguards for this new claim by saying that a notice and take down requirement before, before filing lawsuits. So if you send a notice that somebody is misusing your NIL and that person takes it down, it limits the damages that that would be, uh, recoverable. It recognizes an exclusive right in your personal identity and, uh, it includes unauthorized identity, replication and trafficking. In this, it, it seeks to narrowly navigate this by avoiding First Amendment stuff, by preserving news, reporting commentary, parody, satire, political speech, and other transformative works which would include movies. Uh, and so with that, um, open to any questions.

A motion is that we pass first substitute Senate Bill 2 56.

Senator Vickers Baldy Blue in Bramer Bus Cuomo as can Escamia Fillmore Grover Harper Hankins Ipson Johnson Aye. Juab Aye. Juab McKay Macl Mikel Milner Musselman Owens Pitcher Plum Rebi Sandal Stevenson Stratton Vicar Weiler Wilson Winterton. President Adams Aye.

We might as well, Mr. President, it'll be in the rules room, uh, after we recess. So we have a rules committee meeting in the rules room just after we recess.

Thank you Mr. Speaker. I don't have a good history lesson with, uh, with this bill. Gimme one second here. All right. So, um, Mr. Speaker, uh, AI and deepfake technology have, has really fundamentally changed how personal identity can be misused. Uh, in Utah. We've already tried to address many of these issues on both sides of the spectrum. Last year, the legislature passed, uh, protections addressing commercial misuse of a person's name, image, or likeness. Utah's law also, um, recognizes, uh, within common law and statutory defam deamination, uh, including libel and slander different types of protections of, of people's identity. The problem that this bill is trying to solve is that non-commercial DeepFakes may not meet the technical definitions of defamation, but they can cause real harm. Lemme give you a couple examples of this. Um, victims that, that are in non-commercial situations may be left without any sort of meaningful remedies. Um, a harm could be super obvious but very difficult to prove legally. And courts are trying to apply centuries old legal doctrines to really 21st century technologies. So what we tried to do in Senate Bill 2 56, and we've been working on this really since the end of last session, is to clarify the defamation law and make sure that it applies equally to both AI gen, uh, generated and digitally manipulated content. It addresses this middle ground that we're talking about of harmful, but non-commercial DeepFakes that can cause reputational or personal harm. It also includes a notice and a takedown, uh, requirement before filing suit. It limits damages if the content is promptly removed and recognizes one's identity as a personal property. Right. Um, the last thing, Mr. Speaker that it does is it expressly exempts news reporting, commentary, parody, satire, political speech, and transformative works. And this is a really tricky area because of the First Amendment protections. Um, in most situations where lawsuits have been, um, driven in this space and where the common law is really developed is dealing with commercial harms because it's really easy in commercial context to be able to figure out monetary damages when you're in a non-commercial, um, type setting. It's really hard to prove those damages. And beyond that, it it's, it's hard to get, um, some sort of law that can stick where you can move that in the court. And so this is what this does. To be clear, this bill does not ban any sort of AI or creative expression. It doesn't restrict parity, like I said, um, or other types of First Amendment, uh, rights. And it does not create broad or open-end ended liability. It just protects those individuals from unauthorized and harmful misuse of their identity in the age of AI while providing important protections for First Amendment rights. With that Mr. Speaker, I'm happy to answer any questions about the bill.

Thank you, Mr. Speaker. It is a great bill and urgent support.