As far as I can tell, this wording covers any sort of misrepresentation set to film: creative editing, lookalikes, photo composites, etc. What constitutes undue creative editing is worryingly undefined; there are a lot of practices which create 'inauthentic records' for both innocent and malicious ends, like cutting segments out of an interview. And it seems to have seriously strange edge cases, since unlike libel rules it's not defined by harm to the person misrepresented - can you edit an interview favorably and be charged for that?
I suppose the "intent to facilitate criminal/tortious conduct" clause is supposed to bypass all of that, but I'm not convinced it actually does so. §1041.b.2.A requires actual knowledge that a a record is false for distributors, but §1041.b.1 does not. Presumably the idea is that creating a deepfake shows knowledge, but the deepfake definition itself doesn't require intent by the creator; it's sufficient that the resulting record be false and seemingly authentic. If "intent to facilitate criminal conduct" is read in the same way as e.g. conspiracy statutes, it could connect intent to the conduct, not the criminality. (As a further bit of weirdness, it would then be legal to create without intent to distribute, and later distribute without knowledge. But if you create while intending to distribute, you're in hot water.
An extreme example: someone rounds a corner and sees Person A punching Person B. They arrive too late to see that B initiated the fight and A acted in self defense. They quickly take some video so there's evidence, and after the fight ends send it to B, who requested it as evidence with which to file an assault charge. The taper has now created with intent to distribute what falsely appears to be an authentic record of A's conduct (intent not required). And they reasonably expected that the record would be used to affect the conduct of a state judicial proceeding (§1041.c.1.A). The videographer, without knowledge or intent, is now facing 10 years in prison for creation of a deep fake.
As far as I can tell, this wording covers any sort of misrepresentation set to film: creative editing, lookalikes, photo composites, etc. What constitutes undue creative editing is worryingly undefined; there are a lot of practices which create 'inauthentic records' for both innocent and malicious ends, like cutting segments out of an interview. And it seems to have seriously strange edge cases, since unlike libel rules it's not defined by harm to the person misrepresented - can you edit an interview favorably and be charged for that?
I suppose the "intent to facilitate criminal/tortious conduct" clause is supposed to bypass all of that, but I'm not convinced it actually does so. §1041.b.2.A requires actual knowledge that a a record is false for distributors, but §1041.b.1 does not. Presumably the idea is that creating a deepfake shows knowledge, but the deepfake definition itself doesn't require intent by the creator; it's sufficient that the resulting record be false and seemingly authentic. If "intent to facilitate criminal conduct" is read in the same way as e.g. conspiracy statutes, it could connect intent to the conduct, not the criminality. (As a further bit of weirdness, it would then be legal to create without intent to distribute, and later distribute without knowledge. But if you create while intending to distribute, you're in hot water.
An extreme example: someone rounds a corner and sees Person A punching Person B. They arrive too late to see that B initiated the fight and A acted in self defense. They quickly take some video so there's evidence, and after the fight ends send it to B, who requested it as evidence with which to file an assault charge. The taper has now created with intent to distribute what falsely appears to be an authentic record of A's conduct (intent not required). And they reasonably expected that the record would be used to affect the conduct of a state judicial proceeding (§1041.c.1.A). The videographer, without knowledge or intent, is now facing 10 years in prison for creation of a deep fake.