‘Deepfake’ computer images can constitute harassment says NH Supreme Court, which was less certain years ago

New Hampshire Bulletin has a story (here it is) about a state Supreme Court ruling upholding a sweeping protective order by a female against a male who had used deepfakes as part of online attacks.

The offender would post comments expressing fantasies that the victim would be raped or shot, according to court documents. He uploaded a profile of her onto an online dating app, using her own profile picture. And he used software to create computer-generated images of her, posting fake images of her naked, being choked by a police officer, and stabbed. 

….

Advocates hope that decision, S.D. vs. N.B., will help deter offenders from using artificial intelligence and “deepfakes” to torment their victims online. And they say it sends victims in New Hampshire a strong message that they can go to the courts to stop that behavior. 

An interesting historical item is that in 2008, the Supreme Court threw out a conviction involving earlier “deepfake” tech. (Ruling is here)

The justices overturned the child pornography conviction of a photographer who had made sexual photos by taking pictures of girls at a N.H. summer camp that he had taken as camp photographer and putting their heads on pornographic pictures of adult women’s bodies. He had been sentenced in 2006 to up to seven years in prison after being convicted of child pornography charges.

The state Supreme Court ruled the pictures do not violate child pornography laws, partly because they did not involve sexual acts by actual children and partly because they were not deliberately distributed.

I covered this case extensively, although all the stories disappeared into the ether when the Nashua Telegraph’s current owners switched servers. It was a tough call, frankly: The girls were really traumatized when the pictures were discovered (he left them on the hard drive of a computer that he sent to a local shop for upgrades) but on the other hand it was just some guy’s individual, if sick, fantasy. In general, private thoughts cannot be a criminal act.

That case isn’t the same thing as deliberate harassment, of course, but I think part of the difference in the rulings is that modern deepfake images are realistic in a way that 2006 photoshopping couldn’t be.