United States - Colorado - Synthetic Media Disclosure (HB 24-1147)

Overview

Colorado House Bill 24-1147, officially titled "Candidate Election Deepfake Disclosures," establishes a statutory scheme to regulate the use of deepfakes created using generative artificial intelligence in communications related to candidates for elective office. Enacted on May 24, 2024, and effective July 1, 2024, the act aims to enhance transparency and combat deceptive political messaging. It prohibits the distribution of materially deceptive synthetic media without clear disclosure during a specified period before primary and general elections. The legislation provides for administrative enforcement by the Colorado Secretary of State and creates a private right of action for candidates who are the subject of undisclosed or improperly disclosed deepfakes. The bill represents a proactive step by Colorado to address the growing challenges posed by AI-generated content in the electoral process (Colorado General Assembly).

Definitions

The act introduces several key definitions to clarify its scope and application:

• AI-Generated Content: Defined as image, video, audio, multimedia, or text content that is substantially created or modified by generative artificial intelligence such that the use of generative artificial intelligence alters the meaning or significance that a reasonable person would take away from the content (Colorado General Assembly). It specifically excludes content that is minimally edited, adjusted, or enhanced by generative AI if such use does not materially alter the meaning or significance (Colorado General Assembly).
• Deepfake: Means an image, video, audio, or multimedia AI-generated content that falsely appears to be authentic or truthful and which features a depiction of an individual appearing to say or do something the individual did not say or do (Colorado General Assembly).
• Generative Artificial Intelligence (Generative AI): Refers to an artificial intelligence system capable of generating novel image, video, audio, multimedia, or text content based on prompts or other forms of data provided by a person (Colorado General Assembly).
• Communication: The bill applies to communications concerning a candidate for elective office distributed, disseminated, published, broadcast, transmitted, or displayed to an audience that includes members of the electorate (Colorado General Assembly).
• Materially Deceptive: Implied by the requirement that the deepfake falsely appears authentic or truthful and depicts the individual saying or doing something they did not (Colorado General Assembly).

Governance and Institutional Framework

The Colorado Secretary of State's office is the primary state agency responsible for the administration and enforcement of the provisions concerning deepfakes in election communications. The act expands the existing authority of an administrative hearing officer under the "Fair Campaign Practices Act" to hear complaints and impose civil penalties for violations (Colorado General Assembly). The Secretary of State is also empowered to adopt rules to ensure a clear, conspicuous, and understandable disclosure statement regarding a deepfake, as well as to administer and enforce the provisions of the act (Colorado General Assembly).

Key Focus Areas

• Disclosure Requirements for Synthetic Media: The central focus of HB 24-1147 is the mandatory disclosure for deepfakes in political communications. When a communication includes a deepfake, it must prominently feature the statement: "This (image/audio/video/multimedia) has been edited and depicts speech or conduct that falsely appears to be authentic or truthful" (Colorado General Assembly). This disclosure must be clear, conspicuous, and understandable, adhering to requirements set forth in the act and any rules adopted by the Secretary of State (Colorado General Assembly). Furthermore, the disclosure statement must be embedded in the communication's metadata and, where technically feasible, be permanent or resistant to easy removal by subsequent users (Colorado General Assembly).
• Prohibition on Undisclosed Deepfakes: The act prohibits the distribution, dissemination, publication, broadcast, transmission, or display of a communication concerning a candidate for elective office that includes an undisclosed or improperly disclosed deepfake. This prohibition applies if the person knows or has reckless disregard for the fact that the depicted candidate did not say or do what they are shown saying or doing (Colorado General Assembly). This restriction is specifically active either sixty days before a primary election or ninety days before a general election, targeting critical periods of electoral influence (Colorado General Assembly).
• Exemptions: The law includes specific exemptions from liability. It does not extend liability to an interactive computer service, a radio or television broadcasting station (including cable or satellite operators, programmers, producers, or streaming services), an internet website, a regularly published newspaper, magazine, or other periodical of general circulation, or a provider of technology used in the creation of a deepfake, in accordance with immunities provided by federal law (Colorado General Assembly). Additionally, the act specifies that the prohibition does not apply to communications that constitute satire, parody, or news reporting (GovTech).
• Private Cause of Action: A significant provision is the creation of a private cause of action, allowing a candidate who is the subject of a communication containing an undisclosed or improperly disclosed deepfake to bring a civil action. This action can seek injunctive or other equitable relief, as well as compensatory and punitive damages. The plaintiff-candidate may also recover reasonable attorney fees, filing fees, and costs of action (Colorado General Assembly).

Implementation Framework

The implementation of HB 24-1147 relies on the existing administrative and regulatory framework of the Colorado Secretary of State's office, particularly as it relates to campaign finance and election complaints under the "Fair Campaign Practices Act." The Secretary of State is explicitly authorized to promulgate rules necessary to administer and enforce the new provisions, including further defining the requirements for clear, conspicuous, and understandable disclosure statements (Colorado General Assembly). This grants the Secretary of State flexibility to adapt the regulations as technology evolves and new challenges emerge in the use of generative AI in elections. The bill took effect on July 1, 2024, applying to communications distributed on or after that date (Vote Smart).

Monitoring and Evaluation

Compliance with HB 24-1147 is primarily monitored through a complaint-driven process. Any person who believes there has been a violation of the statutory or regulatory requirements for disclosure of a deepfake can file a complaint with the office of the Secretary of State (Colorado General Assembly). These complaints are reviewed and adjudicated in accordance with the existing complaint and administrative hearing procedures established under the "Fair Campaign Practices Act" (Colorado General Assembly). The fiscal note for the bill indicated that while the workload for the Department of State might increase to handle these complaints, it is expected to be minimal, assuming a high degree of compliance (Colorado General Assembly).

Penalties, Liability, and Appeals

The act establishes both administrative civil penalties and a private cause of action for violations:

• Civil Penalties (Administrative): A hearing officer appointed by the Secretary of State may impose civil penalties for violations. For violations involving unpaid advertising, the penalty is at least $100 per violation. For violations involving paid advertising, the penalty is at least 10% of the amount paid or spent to advertise the communication that includes an undisclosed or improperly disclosed deepfake (Colorado General Assembly). Fine revenue is deposited into the Department of State Cash Fund (Colorado General Assembly).
• Civil Action (Private Cause of Action): A candidate who is the subject of a communication with an undisclosed or improperly disclosed deepfake may bring a civil action in district court. This action can seek injunctive relief, other equitable relief, compensatory damages, and punitive damages. The plaintiff-candidate may also recover reasonable attorney fees, filing fees, and costs of action (Colorado General Assembly). To prevail in such a civil action, the plaintiff-candidate must prove the defendant's knowledge or reckless disregard as to the falsity or deceptiveness of the communication that includes the deepfake by clear and convincing evidence (Colorado General Assembly).
• Limitations on Liability: The act explicitly states that liability for a violation does not extend to interactive computer services, radio or television broadcasting stations (including cable or satellite operators, programmers, producers, or streaming services), internet websites, regularly published newspapers, magazines, or other periodicals of general circulation, or providers of technology used in the creation of a deepfake, consistent with federal law immunities (Colorado General Assembly).
• Appeals: While not explicitly detailed as a separate section within the bill summary, administrative hearing decisions are generally subject to judicial review under Colorado's Administrative Procedure Act. Civil actions in district court would follow standard appeals processes through the state's appellate courts (Colorado General Assembly).

Relationship to Other Instruments

Colorado HB 24-1147 is integrated into existing Colorado election law, specifically amending and adding to Title 1 of the Colorado Revised Statutes, particularly in relation to the "Fair Campaign Practices Act" (Article 45) and creating a new Article 46 concerning deepfakes (Colorado General Assembly). The Secretary of State's authority to enforce and promulgate rules under this act is tied to their existing responsibilities under Article XXVIII of the Colorado Constitution and Section 1-45-111.5(1), C.R.S. (Colorado Secretary of State).

The law's provisions, particularly concerning the regulation of political speech, intersect with First Amendment considerations regarding freedom of speech. Legal experts have noted that such content-based laws must pass strict scrutiny (The Center Square). The bill attempts to balance the need for transparency in elections with constitutional protections by requiring a high standard of proof (clear and convincing evidence of knowledge or reckless disregard) for civil actions (Colorado General Assembly). The act also explicitly states that it does not limit the right of the Attorney General or any person to pursue legal action under any other applicable law, cause of action, tort theory, or authority (Vote Smart).

International Alignment

While HB 24-1147 is a state-level law in the United States, its focus on regulating AI-generated deepfakes in elections aligns with a growing international trend among democracies to address the integrity of electoral processes in the face of rapidly advancing generative AI technologies. Many countries and sub-national jurisdictions are grappling with similar challenges, with some states in the U.S. and countries like California introducing legislation to identify AI-produced material (The Center Square). The principles of transparency and accountability in political communication, which underpin this Colorado law, are subjects of ongoing discussion and legislative efforts globally. However, the specific mechanisms and legal frameworks vary significantly across different jurisdictions.

Implementation Timeline

Sources and References