BOISE, Idaho — This article originally appeared in the Idaho Press.
After a long hearing and many questions from lawmakers, the House State Affairs Committee sent a bipartisan bill that would require disclosure when using Artificial Intelligence-generated depictions of candidates in electioneering to the full House for a vote.
The committee members, many of whom had changes that they wanted to make in the legislation, voted 8-5 on Thursday to send it to the full House without a recommendation.
Rep. Bruce Skaug, R-Nampa, and House Minority Leader Ilana Rubel, D-Boise, sponsored HB 426, which would require AI-generated messages that impersonate a candidate to include notification that it’s fake. Candidates who are impersonated in manipulated images, audio or videos may seek relief from the courts.
“The potential for this to undermine our elections is staggering,” Rubel told committee members shortly after showing a video of a realistic-looking, AI-generated "deep fake" of Morgan Freeman speaking.
Skaug and Rubel fielded a number of questions from the committee regarding what the monetary penalty would be, the timing of the deep-fake's circulation, and who would be considered an affected candidate.
Under the bill, candidates running for public office who are impersonated in a way that is misleading and misrepresents that person may seek relief from a judge, who can order that the media be removed. Candidates can seek actual damages as well as special or punitive damages, which can be much higher and are ordered at the discretion of a judge or jury.
Some lawmakers indicated they wanted high minimum monetary penalties named in the bill as a way to serve as a deterrent.
Rep. Joe Alfieri, R-Coeur d’Alene, said he was concerned that the damage would be done by the time a candidate was able to seek injunctive relief from a court, and he wanted a large penalty included.
“I would like something that would be severe enough to have second thoughts immediately before they went ahead and did something,” Alfieri said.
Other lawmakers agreed with Alfieri. Chairman Rep. Brent Crane, R-Nampa, suggested the sponsors should go back and change the bill to include a steep minimum penalty.
“To us non-lawyers, it doesn’t look like there’s a penalty there,” Crane said. “You guys operate in that space, and so you know what that means, but to the average Joe, like myself, when you say, ‘hey, the penalty is going to start at $50,000 minimum' … that language lets us know that’s the floor, and it can go up from there.”
Reps. Julianne Young, R-Blackfoot, and Heather Scott, R-Blanchard, had concerns about who might be considered candidates and in what time frame the law would apply.
Existing Idaho code defines electioneering communication as any communication meant to sway an election that “unambiguously refers to any candidate” and is produced or distributed within 30 days before a primary election or 60 days before a general election.
Candidate is defined as anyone who seeks nomination, election or reelection to public office who has announced candidacy publicly, filed for office, received a contribution for campaigning, or made an expenditure to promote their candidacy.
A number of members had concerns about a lack of recourse if these types of images or videos were being circulated in non-election year. Rubel said the bill wasn't designed as much to protect candidates as it was to protect the "integrity of elections," and other issues that aren't dealing with elections might be better addressed in different legislation.
Members of the League of Women Voters and two other residents, one of whom described himself as a tech entrepreneur, testified in support of HB 426.
Scott made a motion to return the bill to the sponsors for more work and to incorporate some of the changes committee members indicated they would like to see.
Rubel noted that the bill treads into territory that could be affected by First Amendment protections, so she crafted the bill to mirror what other states have done in this space in an effort to avoid it being struck down as unconstitutional.
“I very much understand people’s concerns on this, but we are in very delicate First Amendment territory and it has to be really quite narrowly confined,” she said. “And I’m concerned that some of the proposed changes could sink the whole ship.”
Skaug pointed out that he and Rubel are “often at odds,” but that they agree on this bill. He asked that the committee pass the bill with no changes.
Rep. John Gannon, D-Boise, made a substitute motion to send the legislation to the floor with a “do pass” recommendation. He said he’d been interested in the issue and looked into similar laws in other states that have been effective.
Rep. Joe Palmer, R-Meridian, made an amended substitute motion to send the bill to the floor without a recommendation. He said that he wanted to keep the bill moving but allow potential changes to be considered by the full House.
Rubel acknowledged that some of the questions revolving around other issues with the use of AI to mislead were valid, and while they may not be what HB 426 was designed for, there are other things that will need to be addressed in the law.
“We are probably going to have to pass 50 bills on AI before the end of next year,” Rubel said. “We are just starting to wrap our head around all the mischief that’s going to come of this... This is just one piece of the puzzle.”
This article originally appeared in the Idaho Press, read more on IdahoPress.com.
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