Real Fake News

Two questions that beat at my mind incessantly: Is the First Amendment an enabler of fake news? Is the First Amendment even able to support a credible challenge to fake news, even when it tears at the fabric of our most basic democratic principles?

Every law student knows that there are limits and conditions placed on free speech. The Constitution itself contradicts itself in granting copyrights, property rights which restrain free speech, while the First Amendment cries for open expression. Likewise, your past speech can be used to turn a serious crime into a heinous offence with vastly more prison time under the notion of a “hate crime.” You cannot falsely scream “fire” in crowded movie theater or incent another to commit a crime without risking your own criminal prosecution. The fancy con that supports a fraud is not free speech.

But politicians have been lying about their accomplishments and their opponents purported missteps for as long as there have been elections. As illustrated in this old joke: “How can you tell if a politician is lying? His/her lips are moving.” Many believe that John Kerry’s defeat at the hands of George W Bush in the 2004 presidential election lies at the feet of the efforts of a private political group (“Swift Vets and POWs for Truth,” formerly known as the “Swift Boat Veterans for Truth” [SBVT]), financed by major conservative donors. SBVT mounted a completely fabricated smear campaign against Kerry and his military service, but like most “first impressions,” this lie stuck in the minds of too many voters like glue.

Wikipedia takes us back to that era: “Kerry was ‘unfit to serve’ as President based upon his alleged ‘willful distortion of the conduct’ of American servicemen during that war, and his alleged ‘withholding and/or distortion of material facts’ as to his own conduct during that war. SBVT stated that "]Kerry's phony war crimes charges, his exaggerated claims about his own service in Vietnam, and his deliberate misrepresentation of the nature and effectiveness of Swift boat operations compel us to step forward.’ The group challenged the legitimacy of each of the combat medals awarded to Kerry by the U.S. Navy and the disposition of his discharge. (See John Kerry military service controversy.) Further, SBVT said that Kerry's later criticism of the war was a ‘betrayal of trust’ with other soldiers, and that by his activism he had caused direct ‘harm’ to soldiers still at war.” But that was a vastly simpler time.

The Kerry debacle is the most cited example of a lie that resonated like truth to bring down a candidate for election to the highest office in the land… until the recent investigation into the now clearly-proven and certainly continuing Russian interference in the 2016 presidential race and the parallel efforts expected for the upcoming mid-term elections. While the Soviet Union, later Russia, have always tried to destabilize their enemies with election meddling, the digital era gave them powerful tools – mostly the same data-scraping available to online markets – to make their efforts incredibly more effective as well as highly and personally targeted… anonymously or pseudonymously, of course.

In the recent indictments of Russian nationals, Robert Mueller listed the following charges against these defendants:

• ·         They conducted political intelligence-gathering activities inside the United States;
• ·         They hid their activities by setting up virtual networks in America that cloaked their extra-American communications;
• ·         The defendants influenced the American election by using false personas to organize rallies for Trump, criticizing Muslims and spreading allegations of voter fraud by candidate Hillary Clinton;
• ·         These alleged perpetrators stole American identities to create controlled accounts; and
• ·         And of course, they also destroyed evidence of their activities.

And as nasty as this manipulative force was and continues to be, for the purveyors of false news, the fact that first impressions are incredibly difficult to reverse, especially where they have been crafted to resonate with the recipient’s own biases, continues to drive their efforts. What will make the dissemination of fake news that much more difficult to reverse is the growing technology that can take a still photograph and alter it in such a way, changing faces and adding background and other people, that even sophisticated image analysis now has difficulty separating what’s real from the altered image.

Add to that capacity is the ability to use recorded words from a speaker, seamlessly re-edited to quite literally put words in the speaker’s mouth that they never spoke, and actually create a full-motion video of events that never took place, using the above photographic techniques combined with some very sophisticated new algorithms to fabricate seemingly real videos. Huh?

David Pierson, writing for the February 19^th Los Angeles Times, explains: “All it takes is a single selfie… From that static image, an algorithm can quickly create a moving, lifelike avatar: a video not recorded, but fabricated from whole cloth by software.

“With more time, Pinscreen, the Los Angeles start-up behind the technology, believes its renderings will become so accurate they will defy reality… ‘You won’t be able to tell,’ said Hao Li, a leading researcher on computer-generated video at USC who founded Pinscreen in 2015. ‘With further deep-learning advancements, especially on mobile devices, we’ll be able to produce completely photoreal avatars in real time.’

“The technology is a triumph of computer science that highlights the gains researchers have made in deep neural networks, complex algorithms that loosely mimic the thinking of the human brain.

“Similar breakthroughs in artificial intelligence allowed University of Washington researchers to move President Obama’s mouth to match a made-up script and the chipmaker Nvidia to train computers to imagine what roads would look like in different weather.

“What used to take a Hollywood production company weeks could soon be accomplished in seconds by anyone with a smartphone… Not available for a video chat? Use your lifelike avatar as a stand-in. Want to insert yourself into a virtual reality game? Upload your picture and have the game render your character.

“Those are the benign applications.

“Now imagine a phony video of North Korean dictator Kim Jong Un announcing a missile strike. The White House would have mere minutes to determine whether the clip was genuine and whether it warranted a retaliatory strike… What about video of a presidential candidate admitting to taking foreign cash? Even if the footage proved fake, the damage could prove irreversible… In some corners of the internet, people are using open-source software to swap celebrities’ faces into pornographic videos, a phenomenon called Deep Fakes.” All it takes is money to access or even create these “cool new technologies” that can so easily be adapted for a most sinister purpose.

Indeed, Hillary Clinton, struggling with old-world emails in 2016, and her campaign were woefully digitally ignorant, social media impaired, when compared with a marketing whiz who had spent his entire life figuring out how to sell his real estate, university, vodka, book, television shows, and even an airline to the general public. He didn’t need to discover how to use social media to market; he had been there all along.

So we get back to that good old First Amendment, that same defamation-resistant constitutional provision that even Donald Trump hates, and ask whether there are remedies and restraints against such falsehoods that are even remotely possible under the wide swath of protectable free speech? And if we cannot fashion such limitations with rather quick enforcement, exactly what will voters be voting for? Can democracy survive without such restraints? Can it survive with restraints as they may have to be constructed to be effective?

I’m Peter Dekom, and if we do not figure this out fairly quickly, how long will it be before election campaigns, even the results of those campaigns, become completely tainted and meaningless?