When someone uses artificial intelligence (AI) to digitally alter a person’s appearance to make them look like someone else and inserts it into a video with the intent to deceive and cause harm to others, it goes beyond a mere prank. Under Texas law, it is a crime.
One bill passed in 2019 (S.B. 751) bans the political use of “deep fake videos,” while another bill passed more recently in 2023 (S.B. 1361) prohibits the pornographic use of such videos.
As Texas criminal defense attorneys, we think it’s important to examine S.B. 1361 and discuss how it addresses the issue of deep fake pornography.
What Is Deep Fake Pornography?
The Texas deep fake pornography law, S.B. 1361, took effect on September 1, 2023. It is codified in Texas Penal Code § 21.165. Under the law, a deep fake video is defined as a video created with the intent to deceive that appears to depict a real person performing an action that did not occur in reality.
The law makes it a crime if someone, without the effective consent of the person appearing to be depicted, knowingly produces or distributes such a deep fake video by electronic means which appears to depict the person with the person’s intimate parts exposed or engaged in sexual conduct.
What Are the Penalties for Deep Fake Pornography?
If a person is found guilty of violating the Texas deep fake pornography law, they face punishment for a Class A misdemeanor. The potential penalties include a fine of up to $4,000, as long as one year in jail, or both a fine and incarceration.
Can Other Crimes Be Committed Using Deep Fake Videos?
If the conduct that leads to a charge under Texas Penal Code § 21.165 would also amount to criminal conduct under other laws, a person could face multiple charges for making and disseminating a deep fake video.
For instance, the conduct may be considered cyberbullying. As a result, the person could face additional charges such as:
- Harassment — Punishable as a Class A or Class B misdemeanor, which could carry a fine of up to $2,000 and up to 180 days in jail
- Stalking — Punishable as a third-degree felony, which could result in a fine of up to $10,000 and a term of two to 10 years in prison
If a person uses deep fake pornography to obtain money or some other form of property by threatening harm to the person’s reputation, they could possibly be charged with extortion. If the amount involved in the extortion is less than $100, it is a Class C misdemeanor. However, if the amount is higher, the offense may be charged as a higher-level misdemeanor or felony.
Four years before S.B. 1361 took effect, Texas enacted the first law in the country that bans the making and distributing of videos meant to harm candidates for public office or influence elections. A violation of the law, which is codified in Texas Election Code § 255.004, is a Class A misdemeanor.
Get Help from an Experienced Texas Criminal Defense Attorney
If you face a deep fake pornography charge in Texas, you will need experienced legal counsel to protect your rights, reputation, and freedom. You need Broden & Mickelsen, LLP. Our legal team includes board-certified specialists in criminal law and criminal appellate law who have over six decades of combined experience. Contact us today for a free consultation.
