Concerns over AI in Politics: Washington State Becomes One of the First to Act

By: Jason Torchinsky, Jessica Furst Johnson, and Jared Bauman

Artificial intelligence (AI) technologies are in the news as they rapidly become more widespread, and political campaigns are no less impacted by this trend. As we noted earlier this month, the American Association of Political Consultants (AAPC) has expressed concern that “deep fake” or “generative AI” content—which includes “synthetic, computer-generated video, stills, or audio elements derived from a person’s likeness, voice, or image”—is now being used in some political campaigns “to lead voters to deceptive conclusions” about opposing candidates. In response, congressional legislation has been introduced to regulate such content.

While questions remain about the best way to approach this phenomenon, the State of Washington last week became one of the first to adopt legislation regulating political ads that utilize AI technologies. Citing the need to protect “the integrity of our democratic process” and limit the influence of “manipulative media,” legislators passed a bill that regulates the use of “synthetic media in campaigns for elective office.”

The new law—which Gov. Jay Inslee signed on May 9 and is effective as of July 23, 2023—requires political ads to include disclosures when they contain “realistic but false” synthetic media. The law defines synthetic media as images, audio recordings, or videos “of an individual’s appearance, speech, or conduct” that are intentionally manipulated by digital technologies to create a “fundamentally different understanding or impression” of the unaltered source material.

Disclosures for images must be “easily readable by the average viewer and no smaller than the largest font size of other text,” and disclosures for videos “must appear for the duration of the video.” Disclosures for audio-only media must be spoken at the beginning and end of the recording and must also be interspersed at two-minute intervals for longer clips.

Notably, the law creates a state court cause of action against ad sponsors who fail to include the required disclosures. Candidates subjected to synthetic media portrayals may seek injunctive or other relief prohibiting publication of the relevant materials, and sponsors may be liable for damages.

Numerous questions remain open about the scope of the law’s application, the constitutionality under the First Amendment, and the applicability of this state law to candidates for federal office. With the State of Washington encouraging courts to determine these matters “expediently,” it appears that Washington state courts will be some of the first in the country to adjudicate cases involving AI in political campaign ads and wrestle with the various legal issues this new law creates.  

Accordingly, if you plan to use generative AI technologies in political ads in Washington State or elsewhere, or if you are the subject of ads involving AI, please reach out to your Holtzman Vogel contact.