Deepfakes in Texas: What Are They and Are They Illegal?

A quick google search of ‘deepfake’ will bring up hilariously entertaining videos of celebrities and public figures such as Barcak Obama, Donald Trump, and Nicolas Cage doing and saying out-of-character things.

But Deepfakes — an artificially created false media made to look hyper-realistic — are expanding past mere entertainment and entering into criminal territory. Recently, a mother from Pennsylvania used the cutting-edge technology in an attempt to get her daughter’s cheerleading rivals kicked off the team.

Seeing the potential threat that deepfake poses to our perception of reality, Texas lawmakers became the first state to pass a law criminalizing deepfakes.

This new era of media tampering is bringing up many questions. Here’s a look at the most current answers to questions about deepfakes in Texas.

What is a Deepfake?

Deepfake, a combination of the terms “deep learning” and “fake,” is a video, image, or voice recording of a person in which their voice, face, or body has been digitally altered so that they appear to be someone else.

Deepfake creators use technology called deep learning, an artificial intelligence (AI) function that learns through artificial neural networks, to make videos and images.

Is it Illegal to Make a Deepfake in Texas?

It can be, in two separate instances.

On September 1, 2019, Texas became the first state in the country to pass a law prohibiting the creation and distribution of videos intended to harm candidates for public office or influence elections.  The law, which was introduced as TX SB751, states that:

A person commits an offense if he or she with intent to injure a candidate or influence the result of an election:

(1)  creates a deep fake video; and

(2)  causes the deep fake video to be published or distributed within 30 days of an election.

Texas passed its second bill on September 1, 2023, which specifically targets sexually explicit deepfakes that are distributed without the subject’s consent, with the intention of causing distress or embarrassment. The recently enacted legislation, known as TX SB1361, outlines the following provisions:

A person commits an offense if, without the effective consent of the person appearing to be depicted, the person knowingly produces or distributes by electronic means a deepfake video that appears to depict the person with the person’s intimate parts exposed or engaged in sexual conduct.

Both laws define a “deep fake video”as video created with artificial intelligence that, with the intent to deceive, appears to depict a real person performing an action that did not occur in reality.

What Other Crimes Can Stem from Deepfakes in Texas?

While there are only two law that specifically criminalize deepfakes in Texas, there are other charges that can apply to deepfake creators. Below are some examples of how a deepfake could land you in deep trouble:

• Cyberbullying: a deepfake that is electronically communicated to bully, intimidate, shame, or threaten a person
• Extortion: a deepfake used to pressure someone to pay money to have it suppressed or destroyed
• Harassment: a deepfake used to persistently and wrongfully abuse, insult, offend, or intimidate.

What are Possible Punishments for People Accused of Deepfakes in Texas?

• Political Deepfakes (TXSB 751): Class A misdemeanor, punishable by up to a year in jail and fines up to $4,000.
• Pornography Deepfakes (TXSB 1361): Class A misdemeanor, punishable by up to a year in jail and fines up to $4000.
• Cyberbullying: Class B misdemeanor punishable by up to 180 days in jail and fines up to $2,000
• Extortion: The punishment for an extortion conviction depends on the value of the money or property involved. The greater the value of the goods extorted, the harsher the penalty. For more information on extortion penalties click here.
• Harassment: Harassment cases are generally Class B misdemeanors, but if you have been convicted of a harassment case in the past, then the offense will be enhanced to a Class A misdemeanor.

How Can You Spot a Deepfake?

Spotting a deepfake is getting increasingly more difficult, but there are some key things to look out for when trying to determine reality from manufactured media. They include:

• Strange or no blinking
• Uneven or splotchy skin tone
• Bad lip synching
• Inconsistencies in fine details such as hair and jewelry

Facing Deepfake Charges in Texas? Contact Us

If you or a loved one is facing a charge pertaining to the creation or distribution of a deepfake, then it is crucial to speak to an experienced criminal defense attorney as soon as possible. Call 817-203-2220 for a free consultation with a member of our team.