Legislature(2023 - 2024)GRUENBERG 120
04/03/2024 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB358 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 358 | TELECONFERENCED | |
HB 358-PROHIBIT AI-ALTERED REPRESENTATIONS
1:11:23 PM
CHAIR VANCE announced that the only order of business would be
HOUSE BILL NO. 358, "An Act relating to use of artificial
intelligence to create or alter a representation of the voice or
likeness of an individual." [Before the committee, adopted as
the working document on 3/22/24 and amended on 3/27/24 and
4/1/24, was the proposed committee substitute (CS) for HB 358,
Version 33-LS1272\U, Walsh, 3/21/24 ("Version U").]
[Because of their length, some amendments discussed or adopted
during the meeting are found at the end of the minutes for HB
358. Shorter amendments are included in the main text.]
1:12:17 PM
REPRESENTATIVE ALLARD moved to rescind the committee's action on
3/27/24 in adopting Amendment 2 to Version U, labeled 33-
LS1272\U.4, Walsh, 3/26/24, which read:
Page 1, line 13, through page 2, line 6:
Delete all material and insert:
"(1) production of the material involved
the use of a child under 18 years of age who engaged
in the conduct; or
(2) the material depicts [A DEPICTION OF] a
part of an actual child under 18 years of age, or is a
representation that is indistinguishable from an
identifiable child under 18 years of age, who, by
manipulation, creation, or modification, including by
use of artificial intelligence, appears to be engaged
in the conduct."
Page 2, line 13, following "AS 11.46.990":
Insert ";
(3) "identifiable child" means an
individual who is recognizable as an actual child by
the child's face, likeness, or other distinguishing
characteristics, regardless of whether the individual
depicted is no longer under 18 years of age"
CHAIR VANCE announced that there being no objection, Amendment 2
was rescinded.
1:12:53 PM
The committee took a brief at-ease.
1:13:33 PM
REPRESENTATIVE ALLARD moved to adopt [replacement] Amendment 2
to Version U, labeled 33-LS1272\U.18, Walsh, 4/2/24, which read:
Page 1, line 13, through page 2, line 6:
Delete all material and insert:
"(1) production of the material involved
the use of a child under 18 years of age who engaged
in the conduct; or
(2) material depicts [A DEPICTION OF] a
part of an actual child under 18 years of age, or is a
representation that is indistinguishable from an
identifiable child under 18 years of age, who, by
manipulation, creation, or modification, appears to be
engaged in the conduct."
Page 2, lines 9 - 12:
Delete all material.
Page 2, line 13:
Delete "(2)"
Insert "(1)"
Following "AS 11.46.990":
Insert ";
(2) "identifiable child" means an
individual who is recognizable as an actual child by
the child's face, likeness, or other distinguishing
characteristics, regardless of whether the individual
depicted is no longer under 18 years of age"
REPRESENTATIVE CARPENTER objected for the purpose of discussion.
1:13:49 PM
BOB BALLINGER, Staff, Representative Sarah Vance, Alaska state
Legislature, on behalf of Representative Vance, explained that
the new Amendment 2 would remove the term "artificial
intelligence" to avoid redundancy, as existing language that
deals with manipulation, creation, and modification should be
sufficient. Furthermore, he said [if the language were left
in], it could be considered an element of the crime itself. In
addition, the proposed amendment would remove the criminal
definition of "artificial intelligence."
1:14:46 PM
REPRESENTATIVE CARPENTER removed his objection. There being no
further objection, Amendment 2 was adopted.
1:14:57 PM
REPRESENTATIVE ALLARD moved to adopt Amendment 11 to Version U,
labeled 33-LS1272\U.17, Walsh, 4/2/24, which read:
Page 2, line 16:
Following "not":
Insert "knowingly"
Delete "made"
Page 2, lines 18 - 19:
Delete "whose speech, conduct, or likeness is
manipulated in a deepfake in violation of"
Insert "who is harmed by an electioneering
communication that violates"
Page 2, line 21:
Delete "deepfake"
Insert "electioneering communication"
Page 2, line 22:
Delete "deepfake; or"
Insert "electioneering communication;"
Page 2, following line 22:
Insert a new paragraph to read:
"(2) a person who disseminates an
electioneering communication knowing that the
electioneering communication includes a deepfake; or"
Renumber the following paragraph accordingly.
Page 2, line 24, following "communication":
Insert "with the intent to influence an election
and knowing that the electioneering communication
includes a deepfake"
Page 2, lines 26 - 27:
Delete "whose speech, conduct, or likeness is
manipulated in a deepfake in violation of"
Insert "who is harmed by an electioneering
communication that violates"
Page 2, line 27:
Delete "deepfake"
Insert "electioneering communication"
Page 3, line 16:
Delete "(b)(2)"
Insert "(b)(3)"
REPRESENTATIVE CARPENTER objected for the purpose of discussion.
1:15:10 PM
MR. BALLINGER explained that Amendment 11 would delete the term
"made" and insert the term "knowingly" in AS 15.80.009 (a) and
delete "whose speech, conduct, or likeness is manipulated in a
deepfake in violation of" and insert "who is harmed by an
electioneering communication that violates" in AS 15.80.009 (b)
to ensure, for example, that if someone were to use President
Biden's likeness to hurt an opponent, it would still be
actionable. It would also insert a new paragraph in subsection
(b) to hold a person liable who disseminates an electioneering
communication knowing that the electioneering communication
includes a deepfake.
1:17:52 PM
REPRESENTATIVE GRAY expressed concern that the word "knowingly"
could be abused, which would take away the power of the bill.
REPRESENTATIVE SUMNER said he agreed with Representative Gray;
however, he believed it would be unfair to remove the term
"knowingly." He gave an example and opined that knowing intent
should be involved in the liability.
REPRESENTATIVE CARPENTER removed his objection.
REPRESENTATIVE GRAY objected.
1:20:12 PM
A roll call vote was taken. Representatives Groh, Allard,
Carpenter, Sumner, and Vance voted in favor of Amendment 11.
Representative Gray voted against it. Therefore, Amendment 11
was adopted by a vote of 5-1.
1:20:56 PM
REPRESENTATIVE ALLARD moved to adopt Amendment 12 to Version U,
labeled 33-LS1272\U.19, Walsh, 4/3/24. [Amendment 12 is
provided at the end of the minutes on HB 358.]
REPRESENTATIVE CARPENTER objected for the purpose of discussion.
1:21:09 PM
MR. BALLINGER explained that Amendment 12 would incorporate the
Miller Test within existing child pornography statutes to create
a new crime: the distribution of generating obscene child sexual
abuse material. He provided a sectional analysis of the
proposed amendment, noting that an exception was included to
protect movies that include the nudity of a minor. Possession
of over 100 copies of this material would fall under the intent
to distribute, resulting in a class B felony or a class A felony
for repeated offenses. He explained that obscene child sexual
abuse material that meets the Miller Test would no longer be
considered First Amendment protected speech, and therefore,
could be criminalized under current jurisprudence and still be
constitutional. At the request of TechNet, Amendment 12 would
also allow employees of technology companies acting in the scope
of their employment to possess these materials for the purpose
of searching for and deleting them without being held liable.
He noted that the possession of generated [child] sexual abuse
material would be a class C felony.
1:31:31 PM
REPRESENTATIVE GRAY directed attention to page 1, line 22 of
Amendment 12 and asked why the number 100 was chosen.
MR. BALLINGER explained that the language mirrored existing
distribution laws. He pointed out that if an individual had 99
[copies of the material], he/she would still be guilty of
possession.
REPRESENTATIVE GRAY directed attention to page 1, line 12, and
asked why section (b) was needed. He reasoned that if a movie
is being shown in a movie theater, it could be assumed that it
has artistic value and is not obscene.
MR. BALLINGER reiterated that the amendment mirrored
distribution of child pornography statutes.
REPRESENTATIVE GRAY referenced Sally Mann who photographed her
child nude and published the content in books. He opined that
if movie theater employees were protected, bookstore employees
should be too.
MR. BALLINGER pointed out that language in question only
pertained to artificial intelligence (AI) generated material,
not photographs of an actual child. He shared his belief that
[Sally Mann's] photographs would be protected under the Miller
Test.
1:36:30 PM
REPRESENTATIVE SUMNER clarified that (b)(1) and (b)(2) [on page
1 of Amendment 12] provide exemptions to theatre owners.
CHAIR VANCE asked Ms. Schroeder to walk the committee through
this section.
1:37:22 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law (DOL), explained that section (b) on page 1 of
Amendment 12 is a mirror image of language in the distribution
of child pornography statute. The language was inserted prior
to 1990. She added that in the context of obscenity and the
Miller Test, the utility is "zero," adding that there would be
no harm in removing the language.
1:38:15 PM
REPRESENTATIVE ALLARD expressed concern about giving businesses
the free will of not knowing. She opined that if libraries can
be prosecuted for disseminating child sexual abuse material
without checking the identification of minors, the same standard
should be held for business owners.
MS. SCHROEDER reiterated that she could not defend this language
and said there is no utility for it, especially in this context.
1:40:10 PM
REPRESENTATIVE GROH directed attention to AS 11.61.122(a) and
questioned the use of the word lewd.
MS. SCHROEDER referenced the federal obscenity statute, which
had been litigated extensively. She explained that case law
indicates that nudity alone is not enough [to be considered lewd
exhibition].
1:43:01 PM
REPRESENTATIVE ALLARD moved to adopt Conceptual Amendment 1 to
Amendment 12 to delete all material on page 1, lines 12-21.
REPRESENTATIVE CARPENTER objected for the purpose of discussion.
1:43:47 PM
CHAIR VANCE asked whether any other language in the proposed
amendment would need to be changed to match the intent of
Conceptual Amendment 1 to Amendment 12.
MR. BALLINGER answered no.
REPRESENTATIVE ALLARD opined that the legislature should not be
lighter on these laws.
REPRESENTATIVE GRAY opined that the language in question was
antiquated and no longer a necessary protection,
REPRESENTATIVE CARPENTER removed his objection. There being no
further objection, Conceptual Amendment 1 to Amendment 12 was
adopted.
1:46:24 PM
REPRESENTATIVE CARPENTER directed attention to page 2, line 20,
and asked how the law would be enforced if there is no actual
human being involved.
MS. SCHROEDER stated that it would be an image that looks like a
child under the age of 18 engaging in sexual conduct described
in AS 11.41.455. She added that it would not be necessary for
an actual child to be involved to be covered by this language.
1:47:28 PM
REPRESENTATIVE CARPENTER asked whether it is possible to
distinguish between a 17- and 18-year-old.
MS. SCHROEDER explained that DOL tends not to charge cases that
are "close to the line," as it needs to be proven to a jury
beyond a reasonable doubt.
MR. BALLINGER pointed out that other evidence may demonstrate
age, such as a specific request for images of 16-year-old, for
example.
REPRESENTATIVE GRAY said there's no question that depictions of
very young children are under the age of 18, which is the goal
of the proposed amendment. He acknowledged that it may be
difficult to enforce the law for 16-year-olds, but enforcement
for 6-year-olds could be accomplished.
CHAIR VANCE reiterated that the area of law pertaining to
generated obscene child sexual abuse material is new. She said
she wanted to ensure that the bill would be standing on proven
case law to create a solid foundation moving forward.
1:53:08 PM
REPRESENTATIVE CARPENTER referred to paragraph (3) on page 2 and
asked whether an argument could be made that a generated image
is artistic and therefore, has merit.
MR. BALLINGER said there is relevant case law on that.
Ultimately, he shared his understanding that the reasonable
person standard would be used. He added that [paragraph 3] was
included because it's part of the Miller Test.
REPRESENTATIVE CARPENTER asked whether removing that language
would defeat the Miller Test.
MR. BALLINGER said it would make the Miller Test incomplete.
1:56:25 PM
REPRESENTATIVE CARPENTER sought to confirm that paragraph (2)
was conveying that if something has artistic value it's okay.
REPRESENTATIVE ALLARD asked whether it's necessary to include
the Miller Test and was unsure whether she the liked the use of
the word "artistic."
MR. BALLINGER reiterated that the reasonable person standard had
been adjudicated. He added that there's a low likelihood that a
judge or a jury would consider this content to hold serious
artistic value.
1:58:37 PM
REPRESENTATIVE GRAY said the committee seemed to be suggesting
that the art of the Renaissance era is obscene. He suggested
that Mr. Ballinger read the Miller Test into the record.
MR. BALLINGER deferred to Ms. Schroeder.
1:59:57 PM
MS. SCHROEDER directed attention to AS 11.41.455, which read as
follows:
Sec. 11.41.455. Unlawful exploitation of a minor.
(a) A person commits the crime of unlawful
exploitation of a minor if, in the state and with the
intent of producing a live performance, film, audio,
video, electronic, or electromagnetic recording,
photograph, negative, slide, book, newspaper,
magazine, or other material that visually or aurally
depicts the conduct listed in (1) - (7) of this
subsection, the person knowingly induces or employs a
child under 18 years of age to engage in, or
photographs, films, records, or televises a child
under 18 years of age engaged in, the following actual
or simulated conduct:
(1) sexual penetration;
(2) the lewd touching of another person's
genitals, anus, or breast;
(3) the lewd touching by another person of the
child's genitals, anus, or breast;
(4) masturbation;
(5) bestiality;
(6) the lewd exhibition of the child's genitals;
or
(7) sexual masochism or sadism.
MS. SCHROEDER reiterated that nudity alone is not enough.
CHAIR VANCE clarified that Amendment 12 addresses those acts
that are generated and would establish new law based on proven
case law.
2:02:11 PM
DAVE STANCLIFF, Staff, Representative Mike Cronk, Alaska State
Legislature, on behalf of Representative Cronk, prime sponsor of
HB 358, opined that Amendment 12, as amended, would make it
easier for people to see the need "for the green button."
2:03:15 PM
REPRESENTATIVE CARPENTER removed his objection. There being no
further objection, Amendment 12, as amended, was adopted.
CHAIR VANCE sought final comment on Version U, as amended.
2:04:47 PM
REPRESENTATIVE GRAY pointed out that the bill started out with
the intention to prevent deepfakes in elections, which is very
important to everyone in the room. He expressed his hope that
it would make a difference in [the November elections].
2:05:19 PM
REPRESENTATIVE ALLARD moved to report CSHB 358, Version 33-
LS1272\U, Walsh, 3/21/24, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 358(JUD) was reported out of the
House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 358 - Amendment #2 (U.18) by Rep. Vance.pdf |
HJUD 4/3/2024 1:00:00 PM |
HB 358 |
| HB 358 - Amendment #11 (U.17) by Rep. Vance.pdf |
HJUD 4/3/2024 1:00:00 PM |
HB 358 |
| HB 358 - Amendment #11 (U.17) by Rep. Vance (in-text).pdf |
HJUD 4/3/2024 1:00:00 PM |
HB 358 |
| HB 358 - Amendment #12 (U.19) by Rep. Vance.pdf |
HJUD 4/3/2024 1:00:00 PM |
HB 358 |