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Libertarian Answer Man: Deepfakes and Revenge Porn

From Facebook:

Libertarian Answer Man time:
Deepfakes, Revenge Porn, etc.

Someone asked me if I had written or had any thoughts on the issue of whether AI and applications like deepfake videos or photos could be a rights violation, for example if it is used to make a fake video of someone depicting them doing things that they actually did not do. This could be done to titillate some audience or even for financial gain, and/or to tarnish someone’s reputation, for revenge, and so on. Apparently some states are considering legislation to ban deep-fake porn, and so on But new laws in California and the demand for new legislation against Deep-fake pornography make me take pause at the unintended consequences this may have on artwork, film, political cartoons and expression itself.

My reply:

I have not written much on it but I think it’s an easy case–it follows directly from the Rothbard-Block perspective on defamation law and my approach to intellectual property rights. Of course it doesn’t violate anyone’s right, *per se*, to make a deepfake. (By the way I don’t think most of the deepfakes are very good, for now at least, and I am skeptical that true AI is even possible, but that is a bit beside the point.)
There should be no copyright, no reputation rights, no personality rights, and so on, so someone making an image or video that resembles your face — doesn’t violate your rights.
The one exception would be if you do this in order to cause harm to someone. For example I have argued that speech, in general, is normally not a rights violation–you argue this even more strongly than me, in opposing even incitement as a crime. (I think incitement can be a crime.) But consider Walter is falsely accused of rape by Anne. Stephan goes on the witness stand and lies: he claims he witnessed Walter rape Anne. So Walter gets convicted and imprisoned. I believe in this case, Stephan’s speech–his testimony–played a causal role in the aggression done to Walter by the legal/penal system. So this is an example when speech is aggression.
Likewise, if I use my AI or computer tech to make a fake video showing Walter raping Anne, and this is used in court to convict Walter, again, this would be an illicit use of a deepfake.
But in general, deepfakes violate no rights since there ought to be no copyright, no name and likeness rights, no reputation rights.
So for example suppose Stephan and Walter have competing pizza restaurants. Stephan makes a deepfake showing Walter peeing in his pizza crust in secret, and posts it on the internet. So Walter loses customers and Stephan gains customers. Stephan has done something immoral but not any crime since he didn’t breach any contract and Walter has no right to his reputation nor to his potential future customers. Stephan has only been dishonest and he lied to people, but that’s not per se a crime.

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From the comments:

Jack Lloyd

I agree with your general statements, I just don’t see how the false testimony could be aggression without duty or a scarcity-related property rights violation.
The act of stating words is just that and, without action, nothing more.
So that’s why those in the statist realm attempt to create “perjury” by having a witness swear to tell the truth, the whole truth, and nothing but the truth.
I would think that someone would need to first create a type of contractual duty before being held liable for the false statements.
This would just end up being a market function, ultimately, as witnesses could be brought in and then, in consideration of something via agreement, they could be then held liable for their actions.
But the acts of third parties will always be due to their beliefs.
So it will be a matter of just sharpening how belief and conviction is formed if and when fakes go so far as to be more believable.
(This issue plagues the justice system even with oaths via prosecutorial misconduct, witness mistake, and witness lies. So we really are just looking at the libertarian + market angle of how to improve truth investigation and verification.)
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    Stephan Kinsella

    Jack Lloyd yes, for me it’s not about a contract or duty. That’s why I disagree w/ Walter Block and Rothbard about incitement. If I see a horde of racist white people looking for some black kid accused of whistling at a white girl and I rile them up or point them in his direction–I am implicated in the harm the mob does to the innocent black kid. Not because I had “sworn testimony” or a contract but because my actions played a causal role in aggression being visited on the victim. I aided and abetted them.
    One way to sort this out is to ask what rights the victim has. Imagine the black guy is hiding in the bushes behind me and he sees me about to tell the mob where he is. So he shoots me to keep me from telling. Would this be justified self-defense? Hell yeah. How would YOU vote on the jury?
    Or imagine during WWII some Jewish housewife whose husband and kids are in a concentration camp is forced to be Hitler’s office maid. One night she is alone with him and she grabs a letter opener and stabs him in the neck–thereby ending the war and saving her family. The libertarian literalists would say she’s a murderer. After all, Hitler never harmed anyone; “he only gave orders.” Fuck that.
    The other problem here is this: “I would think that someone would need to first create a type of contractual duty before being held liable for the false statements.”
    contracts do not give rise to duties. This is the conventional view of them. Contracts are only transfers of title to owned resources. That’s all. In libertarian theory it’s impossible to breach a contract; contract breach is a nonsense concept since it’s not about binding obligations or enforceable duties, it’s about transfers of property.
    Causation and Aggression (2004)
    STEPHANKINSELLA.COM
    Causation and Aggression (2004)

    Causation and Aggression (2004)

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    Jack Lloyd

    Stephan This ties into that good discussion we’ve had about the nexus between proximate cause and whether someone is sufficiently liable for harm.
    I would cut off your responsibility in this situation because you did not do the physical harm yourself, but I would hold a harsh restitution/retribution paradigm for those who did do the physical harm.
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    Stephan Kinsella

    Jack Lloyd I would hold them all liable. No reason to pick and choose. Joint and several liability. The liability of co-conspirators or joint criminals. We can have joint or collective or cooperative action to engage in production; also in aggression. In which case all the participants are jointly and severally liable.
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    Jack Lloyd

    Stephan Yeah- I understand your argument about why you could have that adoption. I am just not sure that I would want to promote that form of assigning guilt. I prefer to stick to actor-action paradigm with each person responsible for their individual actions. A big part of that is seeing the felony murder rule play out in the real world and far too many people being held liable for murders they neither committed themselves nor intended to commit. To me, the balance is just looking to max out the scale of punishments/restitution for the actor’s specific actions. ( :
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    Stephan Kinsella

    Jack Lloyd Imagine Pho is captured by the Nazis. She is lined up on a wall and there is a firing squad ready to shoot her, on the command of their captain. You are watching on a nearby hillside. Before the captain says “Ready, aim, fire!” you shoot him. By your logic, you have committed murder. After all he was only speaking words.
    This is obvious absurd. Of course you have the right to shoot the captain. Which means that what he was doing was aggression. Even though it was only “mouthing words”.
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    Stephan Kinsella

    Jack Lloyd “I prefer to stick to actor-action paradigm with each person responsible for their individual actions.”
    Each actor is liable, of course, but joint and several liabiltiy doens’t exculpate the direct actors. Again, the question can be clarified by asking what rights would the victim (or her agent) would have to stop the impending crime.
    “A big part of that is seeing the felony murder rule play out in the real world and far too many people being held liable for murders they neither committed themselves nor intended to commit.” I am a fan of the felony murder rule. I always take the side of the victims.
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    Jack Lloyd

    Stephan Ending the life of the commander does not mean she does not die. Only those willing to shoot have that in their control. Which is why it would be wisest to end the life of those who are willing to pull the trigger, not just the one uttering words.
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    Jack Lloyd

    A victim has the right to narrowly using defensive measures to stop property rights violatons and, if they occur, to seek justice from the violator in proportion to the harms suffered. That would be why I think the harms suffered would be narrowly tied to the perpetrators in physical form in the same way we think of narrowly definig property rights by physical scarcity to exclude IP.
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    Stephan Kinsella

    Jack Lloyd “Ending the life of the commander does not mean she does not die.” This is fighting the hypo. I am obviously coming up with an example, where it would. The question is, if it would, would you be justified in taking him out? Would the maid be justified in killing Hitler? Would a Japanese resident of Hiroshima be justified in having her bodyguard assassinate Truman before picking up the phone to order the bombing or Hiroshima? Or would these be acts of murder?
    ” Only those willing to shoot have that in their control. Which is why it would be wisest to end the life of those who are willing to pull the trigger, not just the one uttering words.”
    This is fighting the hypo. Sometimes it’s better to take out the head guy. Come on.
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{ 9 comments… add one }
  • Dennis Nezic February 14, 2023, 9:48 pm

    I’m with Jack on this. Glad to see an ally :-). I think our free will breaks any causal link (and liability/responsibility) between words uttered and actions taken. Regarding that hypothetical with the firing squad captain, he deserves to be killed for other reasons (for stealing my money, for threatening me with death, etc), but not for the words he utters.

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