Nicole Girten

(Daily Montanan) As artificial intelligence, or AI, technology advances and becomes more mainstream, states are starting to legislate fake campaign images and deep fake videos on elections– and Montana is starting the conversation in the Treasure State.

Existing Montana law would likely not apply to deep fake advertising, according to state officials Thursday, and may require legislative action in the 2025 session.

A deep fake is an image of person that has been digitally altered, usually by artificial intelligence, so as to make a person appear in a different place or with different people, often used with a malicious intent or in the process disseminating misinformation.

Lawmakers will have to balance First Amendment rights, as well as the right for candidates to “have fun” with campaign material, with protecting against potential influence from deep fake videos and images.

Misinformation isn’t a new phenomenon in campaigns, with tools like digital editing software being on the market for years now, but AI can alter video to place candidates in them, for example, appearing with terrorists or otherwise problematic scenarios that can deceive voters.

Legislatures across the country, with the current absence of federal legislation, are looking to establish parameters of how to penalize these types of videos aiming to interfere in elections, while also abiding by First Amendment rights to free speech. So far California, Michigan, Minnesota, Texas, Washington and Wisconsin have laws either requiring disclosure of AI being used in campaign ads and/or prohibiting deceptive deep fake ads within a number of days before an election.

Montana may use the states which have legislated AI technology in election campaigns as a template for drafting legislation, which lawmakers discussed at an interim committee meeting Thursday. But legislating this topic isn’t easy, with one hurdle being defining AI in statute.

“The term AI covers a lot of things, I mean, spell check is AI,” said staff research analyst Rebecca Power. “You don’t want to prohibit people from using spell check in their postings; that would kind of be a disaster.”

Members of the State Administration and Veterans’ Affairs Interim Committee asked Commissioner of Political Practices Chris Gallus and attorney Shelley Hendrickson Scott if existing Montana laws around defamation could apply in deep fake AI cases.

Gallus said they found laws that, at first glance, could potentially apply, but when looking at the “nuts and bolts” of the language, they didn’t seem applicable.

“If you go to illegal influence of voters, you’re looking at instances where you’re knowingly and purposely performing some activity to induce votes, or to vote, or refrain from voting,” Gallus said. “But if you get into the specifics of that, it’s that you can’t apply alcohol or money or liquor or things like that, or a promise the appointment to a position.”

Gallus said similar statutes are close as well, but would need to be amended with specific language for influencing voters to sway an election with deep fake technology.

Rep. Kelly Kortum, D-Bozeman, asked if Montana’s defamation law would apply in this instance, to which Hendrickson Scott said there wasn’t a defamation law specific to candidates, and the loophole left would be deep fakes could be used to bolster a candidates image in this case, instead of used to bring the other candidate down.

Kortum asked if he created an image of his opponent punching an eagle, what the penalty would be, to laughs in the room.

Gallus said it gets into tricky territory.

“Is that something that’s indeed deceptive? Is it satirical in a sense? Is it to be taken seriously, you know, what was the purpose? And I think that’s where you get into all of the associated problems with that,” Gallus said.

Rep. Ed Stafman, D-Bozeman, asked about enforcement, especially in a timely way, saying a misdemeanor charge is good but what happens if the deep fake goes out close to an election and the damage is done, and it’s left to a county attorney to examine after the fact.

Gallus said preparing to address complaints quickly and communicate claims are false would be one option.

Sen. Forrest Mandeville, R-Columbus, said he wanted to make sure campaigns can still have fun on the campaign trail with digital media.

He said when he was working in California he knew a mayor who would photoshop images of himself on Arnold Schwarzenegger’s body, calling himself the “barbarian mayor” as a “Conan the Barbarian” reference.

Mandeville said with today’s technology “you could make probably a pretty cool picture of my face on Arnold Schwarzenegger’s body chopping down the the bad guys or something.”

“I don’t think anyone really took it as deceptive,” Mandeville said. “ I would caution us that I don’t want to be the ‘no fun committee’ that takes away our ability to to have fun in some campaign ads.”

Stafman suggested the committee work on drafting legislation on AI in elections and the committee later added looking at AI concerns as part of its study into election security issues.