Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2655

Introduced by Assembly Member Berman

February 14, 2024

An act to amend Section 35 of, and to repeal Section 35 of, of the Code of Civil Procedure, and to amend Section 20010 of, and to repeal Section 20010 of, add Chapter 7 (commencing with Section 20510) to Division 20 of the Elections Code, relating to elections.


LEGISLATIVE COUNSEL'S DIGEST


AB 2655, as amended, Berman. Elections: deceptive audio or visual media. Defending Democracy from Deepfake Deception Act of 2024.
Existing law establishes requirements for the conduct of election campaigns, including requirements regarding the endorsement of candidates, political corporations, campaign funds, fair campaign practices, and libel and slander. Existing law, until January 1, 2027, prohibits any person, committee, or other entity from distributing, with actual malice, materially deceptive audio or visual media of a candidate for elective office with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, within 60 days of the election. Existing law requires specified actions pertaining to elections to be given precedence when they are filed in court, including actions involving the registration of voters, the certification of candidates and measures, and election contests, and, until January 1, 2027, actions involving the foregoing prohibition against materially deceptive media.
This bill would establish the Defending Democracy from Deepfake Deception Act of 2024 for the purpose of preventing the online dissemination of manipulated media and disinformation meant to deceive voters and to prevent them from voting. The bill would require a large online platform, as defined, to block the posting or sending of materially deceptive and digitally modified or created content related to elections, during specified periods before and after an election. The bill would require a large online platform to label certain additional content inauthentic, fake, or false during specified periods before and after an election.
The bill would require a large online platform to develop procedures for California residents to report content that has not been blocked or labeled in compliance with the act. The bill would also authorize California residents, the Attorney General, and a district attorney or city attorney to seek injunctive relief against a large online platform for noncompliance with the act, as specified, and would assign precedence to such actions when they are filed in court.
The bill would exempt from its provisions a regularly published online newspaper, magazine, or other periodical of general circulation that routinely carries news and commentary of general interest, if the publication complies with specified disclosure requirements. The bill would also exempt content that is satire or parody.

Existing law, until January 1, 2027, prohibits a person, committee, or other entity, within 60 days of an election at which a candidate for elective office will appear on the ballot, from distributing with actual malice materially deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated, subject to specified exemptions.

Existing law, until January 1, 2027, creates a civil cause of action for violations of that prohibition, as specified, and requires a court to give precedence to such proceedings, among others.

This bill would extend the operation of these provisions indefinitely.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 35 of the Code of Civil Procedure, as amended by Section 1 of Chapter 343 of the Statutes of 2023, is amended to read:

35.
 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20010 of the Elections Code, actions under Chapter 7 (commencing with Section 20510) of Division 20 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.
(b) This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.

SEC. 2.

 Section 35 of the Code of Civil Procedure, as amended by Section 2 of Chapter 343 of the Statutes of 2023, is amended to read:

35.
 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Chapter 7 (commencing with Section 20510) of Division 20 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.
(b) This section shall become operative January 1, 2027.

SEC. 3.

 Chapter 7 (commencing with Section 20510) is added to Division 20 of the Elections Code, to read:
CHAPTER  7. Defending Democracy from Deepfake Deception Act of 2024

20510.
 This chapter shall be known and may be cited as the Defending Democracy from Deepfake Deception Act of 2024.

20511.
 The Legislature finds and declares all of the following:
(a) California is entering its first-ever generative artificial intelligence (AI) election, in which disinformation powered by generative AI will pollute our information ecosystems like never before. Voters will not know what images, audio, or video they can trust.
(b) In a few clicks, using current technology, bad actors now have the power to create a false image of a candidate accepting a bribe or a fake video of an elections official “caught on tape” saying that voting machines are not secure, or to generate the Governor’s voice telling millions of Californians their voting site has changed.
(c) In the lead-up to the 2024 presidential elections, candidates and parties are already creating and distributing deepfake images and audio and video content. These fake images or files can spread to millions of Californians in seconds and skew election results or undermine trust in the ballot counting process.
(d) The labeling information required by this bill is narrowly tailored to provide consumers with factual information about the inauthenticity of particular images, audio, video, or text content in order to prevent consumer deception.
(e) In order to ensure California elections are free and fair, California must, for a limited time before and after elections, prevent the use of deepfakes and disinformation meant to prevent voters from voting and to deceive voters based on fraudulent content.

20512.
 For purposes of this chapter, the following terms have the following meanings:
(a) “Elections official” means any of the following persons, but only in their capacity as a person charged with holding or conducting an election, conducting a canvass, assisting with the holding or conducting of an election or a canvas, or performing another duty related to administering the provisions of this code:
(1) An elections official as defined in Section 320.
(2) The Secretary of State and their staff.
(3) A temporary worker, poll worker, or member of a precinct board.
(4) Any other person charged with holding or conducting an election, conducting a canvass, assisting with the holding or conducting of an election or a canvas, or performing another duty related to administering the provisions of this code.
(b) “Election processes” means any government process related to an election, including, but not limited to, elections, candidates, vote counting, redistricting, and proceedings or processes of the electoral college.
(c) (1) “Materially deceptive and digitally modified or created content” means an image or an audio or video recording or other digital content, including a chatbot, that has been intentionally manipulated such that all of the following conditions are met:
(A) (i) The digital content is the product of digital manipulation, artificial intelligence, or machine learning, including deep learning techniques, that merges, combines, replaces, or superimposes content onto an image or an audio or video recording, creating an image or an audio or video recording that appears authentic, or that otherwise generates an inauthentic image or an audio or video recording that appears authentic, and that contains a false portrayal of any of the following: a candidate for elective office, elected official, elections official, voting machine, ballot, voting site, other property or equipment related to an election, or elections process.
(ii) For purposes of this subdivision, “false portrayal” means the content would cause a reasonable person to have a fundamentally different understanding or impression of the content than the person would have if they were hearing or seeing the unaltered, original version of the content.
(B) The person or entity who attempted to post or send, or who did post or send, the content did so knowing the portrayal was false, or did so with reckless disregard for whether the portrayal was false. If the content is intentionally manipulated and contains a false portrayal as specified in subparagraph (A), there shall be a rebuttable presumption that the person or entity knew the portrayal was false or that they acted with reckless disregard for whether the portrayal was false.
(2) “Materially deceptive and digitally modified or created content” does not include any image or audio or video recording that contains only minor modifications that do not lead to significant changes to the perceived contents or meaning of the content. Minor changes include changes to the brightness or contrast of images, removal of background noise in audio, and other minor changes that do not impact the content of the image or audio or video recording.
(d) “Large online platform” means a public-facing internet website, web application, or digital application, including a social network, video sharing platform, messaging platform, advertising network, or search engine that had at least 1,000,000 California users during the preceding 12 months.

20513.
 (a) Any large online platform shall develop and implement procedures for blocking and preventing, and shall block and prevent, the posting or sending of any materially deceptive and digitally modified or created content, during the applicable time period or periods set forth in subdivision (c), of any of the following:
(1) A candidate for election portrayed as doing or saying something that the candidate did not do or say.
(2) An elections official portrayed as doing or saying something in connection with the performance of their elections-related duties that the elections official did not do or say.
(3) An elected official portrayed as doing or saying something that influences the election that the elected official did not do or say.
(4) A voting machine, ballot, voting site, or other property or equipment related to an election that is portrayed in a materially false way.
(b) (1) Notwithstanding paragraph (1) of subdivision (a), a large online platform shall not prevent a candidate for an election, during the time period set forth in subdivision (c), from portraying themself as doing or saying something that the candidate did not do or say, but only if the digital content includes a disclosure stating the following: “This _____ has been manipulated.” The blank in this disclosure shall be filled in with whichever of the following terms most accurately describes the media:
(A) Image.
(B) Audio.
(C) Video.
(2) (A) For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.
(B) If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.
(c) (1) Except as provided in paragraph (2), any large online platform shall block and prevent the content described in subdivision (a), and any candidate shall include the disclosure required by subdivision (b), during a period beginning 120 days before the election and through the day of the election.
(2) If the content described in subdivision (a) depicts or pertains to elections officials, or depicts or pertains to a voting machine, ballot, voting site, or other property or equipment related to an election, a large online platform shall block and prevent the content during a period beginning 120 days before the election and ending on the 60th day after the election.

20514.
 (a) With respect to any materially deceptive and digitally modified or created content that pertains to election processes and that is not subject to Section 20513, a large online platform shall develop and implement procedures for labeling such content as inauthentic, fake, or false, and shall label such content in this manner, during the applicable time period or periods set forth in subdivision (c).
(b) The label required by subdivision (a) shall permit users to click or tap on it and to inspect all available provenance data about the digitally modified or created content in an easy-to-understand format.
(c) The labeling requirement set forth in subdivision (a) applies during any of the following time periods, to the extent applicable:
(1) The period beginning one year before the election and through the day of the election that is specified in or implicated by the content.
(2) The period beginning one year before the election process and through the final day of the election process that is specified in or implicated by the content.
(3) If the content depicts or pertains to elections officials, the period beginning one year before the election or election process that is specified in or implicated by the content and ending on the 60th day after that election or the 60th day after the final day of that election process, as applicable.

20515.
 (a) A large online platform shall provide an easily accessible way for California residents to report to that platform content subject to Section 20513 or 20514 that was not blocked or labeled as required. The online platform shall respond to the person who made the report, within 36 hours of the report, describing any action taken or not taken by the online platform with respect to the content.
(b) Any California resident who has made a report to a large online platform under subdivision (a) and who either has not received a response within 36 hours or disagrees with the response, may seek injunctive or other equitable relief against the online platform to compel compliance with this chapter. The court shall award a prevailing plaintiff reasonable attorney’s fees and costs. An action under this subdivision shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

20516.
 The Attorney General or any district attorney or city attorney may seek injunctive or other equitable relief against any large online platform to compel compliance with this chapter. The court shall award a prevailing plaintiff reasonable attorney’s fees and costs. An action under this section shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

20517.
 This chapter applies to materially deceptive and digitally modified or created content, regardless of the language used in the content. If the language used is not English, the disclosure required by subdivision (b) of Section 20513 and the label required by Section 20514 must appear in the language used.

20518.
 A large online platform that blocks or labels any materially deceptive and digitally modified or created content shall maintain a copy of the digital content for a period of not less than five years from the election or election process specified or implicated in the content and shall make such digital content available to the Secretary of State, the Fair Political Practices Commission, and researchers, if requested.

20519.
 (a) This chapter does not preclude a large online platform from blocking or labeling any materially deceptive and digitally modified or created content outside of the time periods specified in Sections 20513 and 20514.
(b) This chapter does not preclude any online platform not subject to this chapter from blocking or labeling any materially deceptive and digitally modified or created content.

20520.
 This chapter does not apply to either of the following:
(a) A regularly published online newspaper, magazine, or other periodical of general circulation that routinely carries news and commentary of general interest, and that publishes any materially deceptive and digitally altered or digitally created image, audio, or video recording that an online platform is required to block or label based on this chapter, if the publication contains a clear disclosure that the materially deceptive and digitally altered or digitally created image or audio or video recording does not accurately represent any actual event, occurrence, appearance, speech, or expressive conduct.
(b) Materially deceptive and digitally altered or digitally created content that constitutes satire or parody.

20521.
 The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SECTION 1.Section 35 of the Code of Civil Procedure, as amended by Section 1 of Chapter 343 of the Statutes of 2023, is amended to read:
35.

Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20010 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

SEC. 2.Section 35 of the Code of Civil Procedure, as amended by Section 2 of Chapter 343 of the Statutes of 2023, is repealed.
SEC. 3.Section 20010 of the Elections Code, as amended by Section 3 of Chapter 745 of the Statutes of 2022, is amended to read:
20010.

(a)Except as provided in subdivision (b), a person, committee, as defined in Section 82013 of the Government Code, or other entity shall not, within 60 days of an election at which a candidate for elective office will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media, as defined in subdivision (e), of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

(b)(1)The prohibition in subdivision (a) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated.”

(2)The blank in the disclosure required by paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:

(A)Image.

(B)Video.

(C)Audio.

(3)(A)For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

(B)If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.

(c)(1)A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2)A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive audio or visual media. The court may also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3)In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

(d)(1)This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code.

(2)This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media.

(3)This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media.

(4)This section does not apply to an internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(5)This section does not apply to materially deceptive audio or visual media that constitutes satire or parody.

(e)As used in this section, “materially deceptive audio or visual media” means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that both of the following conditions are met:

(1)The image or audio or video recording would falsely appear to a reasonable person to be authentic.

(2)The image or audio or video recording would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

(f)The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 4.Section 20010 of the Elections Code, as amended by Section 4 of Chapter 745 of the Statutes of 2022, is repealed.