AI In Political Advertising: State And Federal Regulations In Focus – Advertising, Marketing & Branding – Media, Telecoms, IT, Entertainment

The Bottom Line

• Many states are enacting laws governing the use of AI in
  political advertising, with most requiring a disclosure specifying
  when a political ad contains content that was created, altered, or
  manipulated using AI.




• The FCC has proposed a new rule that would require television
  and radio broadcast stations to include a standardized on-air
  disclosure identifying whenever political ads include AI-generated
  content.




• Some federal efforts to regulate AI in political advertising,
  as well as deepfakes more broadly, have not been as
  successful.




• AI-generated online memes may not be considered political
  advertising and are therefore unlikely to be impacted by these new
  legislative and regulatory efforts.

While the 2024 Democratic National Convention takes place this
week in Chicago, it is worth reflecting on the remarkable events of
this year’s general election cycle. The events of July alone
– including an assassination attempt and the sudden
replacement of the Democratic Party’s presidential candidate
– have been disorienting enough for voters and commentators.
Add to the mix the recent advancements in generative artificial
intelligence (AI) technologies, and a general sense of panic would
be understandable.

Fortunately, legislators and regulators have been working
tirelessly (though with mixed success) to adopt new laws and
regulations to mitigate the potential harms that AI can pose,
particularly in the context of political advertising.

Last fall, we explored some initial developments that media
companies such as Google and Meta were adopting to combat
AI-generated election misinformation on their platforms. There have
been many developments on the state and federal level since then
that will impact the way political campaigns can and cannot use
generative AI tools through the rest of the 2024 election cycle and
beyond.

State Legislation

As of August 2024, 16 states have adopted new laws governing how
AI-generated content can be used in political advertising. Another
16 states have legislative bills on the issue that are under
consideration.

Among the states that already have laws on the books, the
majority do not prohibit political advertisers from using
generative AI entirely, but simply require that such advertising
disclose whether they include AI-generated content. (Minnesota is
one notable exception, where it is prohibited to circulate
unauthorized deepfakes of a political candidate in a manner
intended to injure the candidate or influence the election.) In
many of these states, the disclosure requirement can be satisfied
by clearly and conspicuously including language such as
“This [image/video/audio] has been manipulated or
generated by artificial intelligence” in the advertising.
In certain states, the disclosure requirement is only imposed
during an “electioneering” period (typically 60 or 90
days) prior to a primary or general election. Such electioneering
periods prior to this year’s general election have already
begun in certain jurisdictions and many more will begin in early
September.

These laws are generally designed to target so-called
“deepfake” content or “synthetic media” which
falsely, but realistically, depicts a candidate for office doing or
saying something that they did not actually do or say, in a manner
that is presented as if it were authentic. The majority of states
with these laws also allow candidates who are deceptively depicted
in AI-generated content to bring an action for injunctive relief or
damages against the sponsor of the advertisement.

Federal Communications Commission Proposed Rule

In late July, the Federal Communications Commission (FCC)
released a notice of proposed rulemaking (the Notice) proposing a
new rule requiring all television and radio broadcast stations to
include a standardized on-air disclosure identifying whenever
political ads they broadcast include AI-generated content. Like the
state legislation described above, the FCC is primarily focused on
the use of generative AI to create deepfakes, which can be used to
spread disinformation and misinformation. This recent initiative by
the FCC follows actions it took earlier this year in response to an
incident before the New Hampshire primary election in which voters
in the state began receiving robocalls in which an AI-generated
deepfake of President Biden’s voice encouraged them not to vote
on election day. In the wake of this deceptive effort to suppress
voter activity, the FCC has been taking steps to expand the reach
of the Telephone Consumer Protection Act (TCPA) to impose stricter
regulations on automated robocalls using AI-generated voices.

To achieve this goal, the rule would require broadcast stations
to (1) ask advertisers whether their ads include any AI-generated
content, and (2) adopt a uniform disclosure message to present
alongside the ad. The FCC Chair has stated that the intent of the
proposed rule is simply to identify and inform consumers when a
political ad includes AI-generated content and that the Commission
does not intend to ban such advertising or pass judgment on the
truth or falsity of the content incorporated in the
advertising.

Due to the lengthy process involved in regulatory rulemaking,
such a new rule is unlikely to be finalized or come into effect
before the 2024 general election.

Stalled Federal Efforts

Not all efforts to regulate the use of AI in political
advertising have been successful.

The Federal Election Commission (FEC) had been considering a
petition asking it to adopt a newly proposed rule regulating the
use of AI in political advertisements. The proposed rule would have
amended existing regulations that prohibit a candidate or their
agent from “fraudulently misrepresenting other candidates or
political parties” to make clear that this prohibition would
apply to deliberately deceptive AI-generated campaign ads. Given
the FEC’s new authority over political advertising on internet
channels, new rules targeting deceptive AI-generated ads could have
been a significant tool in the fight against campaign-sponsored
misinformation online. However, despite extensive public comment
and media attention, and to the surprise of many commentators, it
appears that the FEC will close the petition without further action
following pressure from Republican FEC commissioners, who have
indicated that the Commission should wait for direction from
Congress and study how AI is actually being used in political
advertising before advancing any new rules.

Action in Congress has also stalled. Members of the House and
Senate have introduced legislation that would require disclaimers
on political ads that include content created with generative AI,
including the “REAL Political Advertisements Act”
introduced by Rep. Yvette Clark in 2023 and the “AI
Transparency in Elections Act” introduced by Sens. Amy
Klobuchar and Lisa Murkowski in early 2024. There has not been
significant movement on any proposals, and it is unlikely that any
bills governing the use of AI in political advertising will be
passed before the November general election.

Outside of political advertising, the U.S. Senate has been
considering the so-called “NO FAKES Act,” which would
establish a federal right of publicity law specifically targeted at
giving individuals control over so-called “digital
replicas” of their voice and likeness. While this new law
would give public figures and everyday citizens a stronger ability
to combat unauthorized deepfakes, it would not apply to bona fide
First Amendment-protected speech such as news reporting,
commentary, satire, and the like. It is also unlikely to come into
effect in time to impact the upcoming general election.

Some Things Stay The Same

Although the new state laws and FCC regulations on the use of AI
in political advertising promise to reduce misinformation and
deception, it is important to note that these laws do not
necessarily impact the ability of regular people to use generative
AI tools to create and spread deceptive memes and other
misinformation about political candidates online. This type of
user-generated content may be distinct from political advertising
governed by the applicable state laws discussed above. Whether and
to what extent people are able to use AI to create deceptive
deepfake images, videos or audio of candidates that do not qualify
as “political advertising”, and to spread them on social
media, depends primarily on the guardrails that AI companies and
social media platforms impose on their technology and their
users.

Many AI providers such as Google (Gemini), OpenAI (ChatGPT),
Meta (Llama) and Anthropic (Claude) have publicly announced a
desire to create “responsible” AI products. These
platforms have introduced user policies and technical barriers that
restrict users from easily generating deceptive deepfakes of known
individuals or public figures, and that superimpose disclosures on
AI-generated content labeling it as such. Many users have
nevertheless found ways to circumvent these restrictions. Still
other AI providers, such as X (formerly known as Twitter) and its
newly released Grok-2 AI tool, intentionally seek to push
boundaries and allow users to generate nearly anything they can
imagine, without requiring any disclosures, in the name of free
speech.

In this context, the many state laws and federal regulations
that aim to minimize the deceptive use of AI in political
advertising, and even the proposed “NO FAKES Act,” may
have only a limited impact on the spread of AI-generated
disinformation online.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.