Truly Fake News

There’s a lot of stuff going on in the world. A horrific pandemic that seems to be beginning a second wave. A nation confronting its racially biased past. A battle between white traditionalists and progressive leftists with most of America caught somewhere in the middle. While all of this is going on, as the November election is already bubbling and brewing with controversy, some pretty important issues seem to be falling through some pretty wide cracks, social fissures actually. Between the most untruthful President in American history and incredibly accelerating technology that pretty much allows anyone with the right skills to create a recording (audio with or without video) that is virtually indistinguishable from reality, our nation is at risk.

There’s the basic stuff. Creating conspiracy theories out of whole cloth and disseminating them to receptive and gullible readers likely to spread the theory as fact. The Russians are pretty good at that. Sure you can distort by slowly a video down, making the speaker sound drunk (the infamous Nancy Pelosi incident) or simply use pictures from one event, change the label on them and present them to support your case for an entirely different place. For example, Fox News was clearly in support of the President’s threat to send US Army forces to take down a purported violent antifa stronghold in Seattle, CHAZ (“Capitol Hill Autonomous Zone”), that had been sanctioned by that city’s mayor and chief of police. So, they created a little misleading visual to bolster their case. Except they got caught.

“On Friday [6/12], Fox News posted a photo of a man holding a rifle in front of a store with broken windows. Another picture showed a burning car and store with a person running down the street with the caption ‘Crazy Town.’ It was featured alongside an article about protests in Seattle, but the photo was actually from St. Paul, Minn., taken on May 30, according to The New York Times, CNN and The Seattle Times.” Variety.com June 13^th. The real CHAZ was totally peaceful.

But these techniques are primitive. The “deepfake” – which has its main value in fake celebrity porn videos – often creates visual documentation that is hard to defeat without delving into the source codes, not anything most of us would ever do. But as that ability to manufacture credible audio-video “evidence” gains in sophistication, democracy is challenged to its core… and even court cases based on purported recordings begin to become questionable. How do you prove anything?

“Deepfakes have seeped into our culture and politics but are most often found in pornography. According to a Deeptrace Labs report, The State of Deepfakes: Landscape, Threats, and Impact, 96% of manipulated videos on the internet are pornographic.

“As the technology grows in complexity, making it more difficult to spot fakes, attorneys and judges will have to decide how to manage deepfake evidence and authenticate it, says Riana Pfefferkorn, associate director of surveillance and cybersecurity at the Center for Internet and Society at Stanford Law School. She warns that deepfakes could erode trust in the justice system… ‘My worry is that juries may be primed to come into the courtroom and be less ready to believe what they see and believe what they hear and will be more susceptible to claims that something is fake or not,’ says Pfefferkorn.” Matt Reynolds writing for the June 9^th Journal of the American Bar Association. The technology was born in the special effects labs for the motion picture industry, accelerated with cute smart phone apps and has evolved into readily available, off-the-shelf software capable of some astounding fake vocal and photographically accurate false imagery.

“In the past decade, the courts have ruled several times on procedures for authenticating digital evidence, Pfefferkorn says… In the 2010 case, People v. Beckley, the California 2nd District Court of Appeal ruled that prosecutors should not have admitted a MySpace image claiming to show the girlfriend of a defendant flashing a gang sign because neither a witness nor an expert authenticated it.

“Ruling in a different criminal case, the California 1st District Court of Appeal disagreed with the approach taken by the 2nd District. The court relied on a California Supreme Court ruling four years after Beckley to find that eyewitness or expert testimony may not be necessary.

“More recently, a Colorado appeals court ruled that an audio recording of a man’s voicemail to his victim was admissible in a murder case, despite his claims that prosecutors did not authenticate it… ‘Developments in computer technology and software enable almost any owner of a personal computer with the necessary knowledge and software to falsely edit recordings,’ wrote Judge Michael Berger for the Colorado court. ‘But, the fact that the falsification of electronic recordings is always possible does not, in our view, justify restrictive rules of authentication that must be applied in every case when there is no colorable claim of alteration.’

“Pfefferkorn says courts have shown that they can be ‘robust against generations and generations of fakes.’ The photo-editing software Adobe Photoshop has been around for decades, and long before deepfakes, courts have handled everything from forgeries to doctored photocopies, she says… ‘As long as there’s been evidence in court, there’s always been fakes, and the courts have come up with rules to deal with those as they come up, and are aware that there’s always the possibility that somebody is trying to hoodwink them, Pfefferkorn says.

“According to Jason Lichter, director of [litigation] discovery services at Pepper Hamilton in New York City and member of the ABA’s E-Discovery and Digital Evidence Committee, deepfakes are ‘in many respects just the next iteration or an evolution of a trend or a risk.’

“‘That being said if a picture’s worth a thousand words, a video or audio could be worth a million. Because of how much weight is given to a video by a factfinder, the risks associated with deepfakes are that much more profound,’ Lichter says…

“There is another feature of deepfake technology that could be overlooked. The existence of deepfakes could allow anyone to question whether evidence is real or faked. [Authors of Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, Robert Chesney and Danielle Citron] call this the ‘Liar’s Dividend.’… ‘Deepfakes will make it easier for liars to deny the truth in distinct ways. A person accused of having said or done something might create doubt about the accusation by using altered video or audio evidence that appears to contradict the claim,’ their paper states.” ABA Journal.

But the reality remains, particularly as the specialized software gets even more refined, that really smart players with the cutting-edge tech can create videos that cannot be absolutely clearly determined to be fakes. “As the technology evolves, and becomes cheaper and more widespread it could end up in the hands of anyone with access to a smartphone. Hany Farid, a digital forensics expert and professor at University of California at Berkeley, admits that the work of detecting deepfakes is a ‘cat-and-mouse’ endeavor.

“‘I will probably never be able to stop the state-sponsored actors, the Hollywood studios, the highly talented people and forgers from manipulating content,’ Farid says. ‘I’ll absolutely take it out of the hands of somebody who’s downloading some code from the internet and running it on their laptop and then trying to fool the system.” ABA Journal.

We see these “truth vs facts” issues all the time. In the rebellion at Facebook where senior staffers find the company’s practice of posting everything the President wants without question to the recent practice at Twitter where viewers of Presidential falsehoods are given a link to a site where actual facts that contradict his fabrications can be found. But if voters act on lies as if they were truths, if juries convict based on audio-visual “recordings” of events that never took place, can any democratic society survive? Are we simply caught in an uncontrollable First Amendment free speech right where rogue manipulative liars effectively control society?

            I’m Peter Dekom, and there is a common sense constitutional balancing act that better be deployed soon… or we can watch treasonous actors use the Constitution itself to unravel America.