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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
AMENDED
candidates; digital impersonation; injunctive relief
Purpose
An emergency measure that allows a candidate who will appear on the ballot in Arizona or any citizen of Arizona to initiate an action against the digital impersonation of the person and outlines requirements relating to an action and a subsequent judgement for preliminary declaratory relief, permanent declaratory relief or injunctive relief.
Background
On October 30, 2023, President Biden issued Executive Order 13960 (EO) that aims to promote the safe and trustworthy development and use of artificial intelligence (AI). The EO directs multiple federal agencies to collaborate with joint efforts in research, development and implementation of strategies to detect and prevent the spread of deepfakes or other manipulated digital media. The EO urges for the standardization of guidelines to govern the ethical use of AI to ensure that AI is safe for use and emphasizes transparency and accountability to safeguard peoples' privacy and civil liberties. The EO directs the U.S. Department of Commerce to develop guidelines for AI content authentication and watermarks for the purposes of clearly disclosing AI -generated media. Federal agencies will be required to utilize the authentication and watermark tools to allow for people to know whether or not the communications that they receive are authentic. The EO also establishes the White House AI Council to coordinate the activities of the federal agencies to ensure the effective formulation, communication and timely implementation of AI-related policies.
A person commits criminal impersonation if the person assumes a false identity with the intent to defraud another or pretends to be a representative of a person or organization with the intent to defraud. Criminal impersonation is a class 6 felony (A.R.S. § 13-2006).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows a candidate who will appear on the Arizona ballot for public office or any citizen of Arizona to bring an action for digital impersonation of the person within two years of the person's knowledge of, or when the person exercising reasonable diligence should know, that a digital impersonation of the person was published.
2. States that the only remedy for a digital impersonation cause of action is preliminary and permanent declaratory relief unless otherwise prescribed.
3. Stipulates that a person may bring forth an action by petitioning the superior court of the county in which the person resides, unless the person is a candidate for presidency, then the person may petition the superior court in Maricopa County or any county in which one of the candidate's appointees or electors resides for a preliminary declaration.
4. Requires a plaintiff, in order to prevail on an action, to prove by a preponderance of the evidence that:
a) a digital impersonation of the person was published to at least one other person without the person's consent; and
b) on publication of the digital impersonation:
i. the publisher did not reasonably convey that the recording or image was a digital impersonation;
ii. did not convey that the impersonation's authenticity was disputed; or
iii. it was not otherwise obvious to the person whom the publication was made that the recording or image was a digital impersonation.
5. Requires the plaintiff seeking declaratory relief to make all reasonable efforts to provide service and notice to all defendants immediately upon filing the petition for relief.
6. Exempts a petition for preliminary declaratory relief from the notice requirement and requires the petitioner, before preliminary relief without notice may be granted, to submit a declaration or verified complaint that:
a) supports the petition; and
b) explains why it may be difficult to effectuate service on the defendants.
7. Stipulates that if the court issues a preliminary declaration without notice, then the preliminary order must:
a) state the date and hour the order was issued;
b) state the reasons why the order was issued without notice;
c) be filed promptly in the clerk's office; and
d) be entered in the record.
8. Prohibits the court from issuing permanent relief unless notice is provided to all defendants as outlined.
9. Requires the court to rule on a petition for preliminary declaratory relief requested without notice, within two business days after the petition is hand delivered or emailed to the chambers of the judicial officer assigned to the case.
10. Requires the court to grant preliminary declaratory relief only if the plaintiff proves the elements of digital impersonation by a preponderance of the evidence, or by clear and convincing evidence if the preliminary relief is sought without notice, and if:
a) the person is a candidate for public office and an election is scheduled for that office within 180 days of relief being requested;
b) the digital impersonation depicts the person unclothed as prescribed or engaging in a criminal or sexual act;
c) the person's reputation will be irreparably harmed; or
d) the
person may be reasonably expected to suffer significant personal hardship,
financial hardship or loss of employment opportunities.
11. Stipulates that, if a digital impersonation is a paid advertisement, then a cause of action for declaratory judgement may only be brought against the person or entity that originated, ordered, placed or paid for the advertisement.
12. Prohibits a provider of an interactive computer service from being treated as the publisher or speaker of any information provided by another information content provider.
13. Specifies that the publisher of the alleged digital impersonation has the right to appear, be heard and present evidence before the court enters a preliminary declaratory judgement.
14. Specifies that a defendant's failure to appear does not affect the ability of the court to provide preliminary declaratory relief.
15. Specifies that the plaintiff is not entitled to taxable costs if the publisher does not appear and contest the claim, and no other party intervenes as a defendant.
16. Deems an action in which the petitioner is a candidate, public official or public figure, as abated if the publisher does not appear and no other party intervenes as a defendant within the specified timeframe.
17. Contains a severability clause relating to the abatement of an action.
18. Provides a person that brings a digital impersonation action with the right to injunctive relief and damages if:
a) the digital impersonation:
i. depicts the person unclothed or engaging in sexual acts;
ii. appeals to prurient interests; and
iii. offends local community standards;
b) the person was not a public figure at the time of the cause of action;
c) the elements of digital impersonation as outlined are proven by clear and convincing evidence; and
d) the person proves by clear and convincing evidence that the publisher knew that the recording or image was a digital impersonation or that the publisher failed to take reasonable corrective action within 21 days of becoming aware that the recording or image was a digital impersonation.
19. Specifies that a reasonable corrective action includes removing or disabling access to the digital impersonation or publishing a statement that the recording or image is a digital impersonation.
20. Prohibits the trier of fact, if preliminary declaratory relief sought without notice is issued, from considering any factual or legal determinations made by the court at a later stage in the proceeding process or in any other proceeding.
21. Allows a parent or guardian of a minor or an incapacitated person to seek declaratory relief on behalf of the minor or incapacitated person.
22. Specifies that the requirements relating to actions against digital impersonations:
a) must be narrowly construed in favor of free and open disclosure on matters of public concern and artistic expression;
b) may not be construed in a manner that denies or disparages any other available cause of action or to limit a party's constitutional right to trial by jury; and
c) only provide parties to actions seeking permanent declaratory relief with the right to a trial by jury.
23. Defines digital impersonation as synthetic media that:
a) is typically a video, audio or still image;
b) is digitally manipulated or otherwise simulated to convincingly replace a person's likeness or voice with that of another using deep generative methods and artificial intelligence techniques;
c) is created with the intention to deceive or lead a reasonable audience to believe that the content is authentic and a true and accurate depiction of something the person said or did; and
d) excludes commentary, parody, satire, criticism, artistic expression or media created by or with the person's consent.
24. Defines information content provider as any person or entity that is responsible for the creation or development of information provided through the internet or any other interactive computer service.
25. Defines interactive computer service as any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including:
a) a service or system that provides access to the internet; and
b) systems operated or services offered by libraries or educational institutions.
26. Specifies that public figure includes limited purpose public figures.
27. Defines public office as any office of public trust or any position that persons within a political party are elected to.
28. Specifies that appear on the ballot in this state includes a candidate for U.S. presidency whose candidates for presidential elector will appear on the ballot in Arizona.
29. Defines election as any election in Arizona.
30. Becomes effective on signature of the Governor, if the emergency clause is enacted.
Amendments Adopted by Committee of the Whole
1. Outlines notice and service requirements relating to digital impersonation complaints and subsequent relief, including requirements relating to orders for preliminary relief that are issued without notice.
2. Stipulates that, if preliminary declaratory relief is sought without notice, the plaintiff must prove the elements of digital impersonation by clear and convincing evidence before the court may grant preliminary relief.
3. Specifies that a defendant's failure to appear does not affect the court's ability to issue preliminary relief.
4. Adds to the requirements that must be met for a plaintiff to have the additional right to injunctive relief in a digital impersonation action.
5. Adds still images to the definition of digital impersonation.
6. Makes conforming changes.
House Action Senate Action
MOE 1/24/24 DPA 9-0-0-0 ELEC 3/4/24 DP 5-2-1
3rd Read 2/21/24 55-0-4-0-1
Prepared by Senate Research
April 3, 2024
AN/KS/cs