United States - Michigan - AI in Elections (HB 5141-5145)

Overview

The State of Michigan, through a package of five House Bills (HB 5141, HB 5142, HB 5143, HB 5144, and HB 5145), has established a comprehensive regulatory framework for the use of artificial intelligence (AI) and materially deceptive media, commonly known as 'deepfakes,' in political campaigns. This legislative package, signed into law by Governor Gretchen Whitmer on November 30, 2023, and effective February 13, 2024, aims to combat misinformation and promote transparency in the electoral process. The laws mandate clear disclosure of AI-generated content in qualified political advertisements and prohibit the creation or dissemination of deepfakes that falsely depict individuals engaging in speech or conduct they did not, especially when intended to influence an election within 90 days of polling. The legislation seeks to protect voters from misleading AI-generated content that could otherwise become indistinguishable from authentic media.

Definitions

The Michigan legislation defines several key terms to establish the scope of its regulations:

• Artificial Intelligence (AI): Defined in House Bill 5143 as a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. It further specifies that such a system uses machine and human-based inputs to perceive real and virtual environments, abstract these perceptions into models through automated analysis, and use model inference to formulate options for information or action. (Michigan Legislature)
• Materially Deceptive Media (Deepfake): House Bill 5144 defines this as any image, audio, or video where it falsely depicts an individual engaging in speech or conduct in which the individual did not actually engage, and a reasonable viewer or listener would incorrectly believe that the depicted individual engaged in the speech or conduct. (Michigan Legislature)
• Qualified Political Advertisement: House Bill 5141 defines this as any advertising related to a candidate for federal, state, or local office in Michigan, any election to federal, state, or local office, or a ballot question that contains any image, audio, or video generated wholly or substantially with the use of artificial intelligence. (Michigan Legislature)

Governance and Institutional Framework

The Michigan Legislature is responsible for enacting these laws, with the Governor's signature bringing them into force. The enforcement of these regulations primarily involves the Michigan Attorney General, who may pursue legal action, and circuit courts, which handle civil actions brought by aggrieved candidates. The Michigan Campaign Finance Act and the Code of Criminal Procedure are the foundational legal instruments that these bills amend, placing the new regulations within existing state legal structures. (Michigan Legislature)

Key Focus Areas

• Disclosure Requirements for AI-Generated Political Advertisements: The legislation mandates that any qualified political advertisement created wholly or substantially with AI must clearly and conspicuously disclose its AI origin. Specific formatting requirements apply:
  • Graphic/Print Ads: The disclosure statement must be in the same language as the rest of the communication and appear in letters at least as large as the majority of the text in the advertisement.
  • Audio Ads: The statement must be at least three seconds in length, spoken in an audible and intelligible manner in the same language as the rest of the communication, and placed at either the beginning or end of the communication.
  • Video Ads: The disclosure must meet the requirements for audio communication and appear for at least four seconds in letters that are as large as the majority of any text included in the video.
  (Michigan Legislature)
• Prohibition of Deceptive Deepfakes in Elections: The laws make it unlawful to create or distribute materially deceptive media (deepfakes) with the intention to influence the outcome of an election. This prohibition is particularly stringent within 90 days before an election. However, this prohibition does not apply if the media includes a clear disclaimer informing the viewer that it has been manipulated to depict speech or conduct that did not occur. An example of a sufficient disclaimer provided by the law is: “This [image, audio, or video] has been manipulated by technical means and depicts speech or conduct that did not occur.” The intent behind this provision is to prevent the spread of false narratives that could mislead voters.
• Exemptions: Certain entities and types of content are exempt from these regulations. These include:
  • Radio or television stations broadcasting an AI-generated ad as part of a newscast, news interview, news documentary, or news event, provided the broadcast acknowledges the use of AI.
  • Platforms that regularly publish news and commentary, such as regularly published newspapers, magazines, websites, or other generally circulated periodicals.
  • Political advertisements that are clearly satire or parody.
  • Businesses or affiliates regulated by the Michigan Public Service Commission or the Federal Communications Commission.
  • Broadcasters, cable, and satellite providers are generally exempt from liability if they are paid to broadcast a political message.
  • For online providers, the law's language suggests they may also be exempt if they have a clearly written policy statement, disclosed to advertisers, prohibiting the use of AI in political ads without proper disclosure.
  (Michigan Legislature)

Implementation Framework

The laws are implemented by requiring political campaigns, committees, or other entities that create, publish, or originally distribute qualified political advertisements to adhere to the disclosure and deepfake prohibitions. The effective date of February 13, 2024, signifies when these new legal obligations began to apply to election-related communications. The tie-barring of certain bills (e.g., HB 5143 to HB 5141) ensures that the definitional and substantive provisions become effective concurrently. The intent is for these regulations to be immediately applicable to political activities leading up to and during the 2024 election cycle. (Bloomberg Law)

Monitoring and Evaluation

Compliance with these new laws is primarily monitored through the potential for legal challenges. Affected candidates or the Attorney General can initiate legal proceedings against violators. The clear and conspicuous disclosure requirements, along with the specific parameters for disclaimers, provide measurable standards against which compliance can be assessed. While the legislation doesn't explicitly detail a dedicated monitoring agency or regular reporting requirements beyond enforcement actions, the framework relies on the vigilance of political actors, the public, and legal authorities to identify and address violations. (Fox News)

Penalties, Liability, and Appeals

Violations of Michigan's deepfake and AI election laws carry significant penalties, encompassing both criminal and civil liability:

• Criminal Penalties: Campaigns or individuals violating the proposed laws may face misdemeanor charges. A first violation can be punishable by up to 93 days in prison, a fine of up to $1,000, or both. (Fox News)
• Civil Penalties and Liability: An individual or candidate harmed by deceptive media can apply to the appropriate circuit court for relief. The legislation introduces a private right of action for candidates adversely affected by violations, allowing them to seek injunctions or other necessary relief. (Bloomberg Law)
• Appeals Process: While the legislation itself does not detail a specific appeals process, appeals from circuit court decisions would follow standard Michigan judicial procedures.

It is important to note that the laws impose obligations primarily on the political advertiser, not necessarily on the media company transmitting the advertisement, though exemptions exist for certain broadcasters and online platforms under specific conditions.

Relationship to Other Instruments

This package of bills directly amends and interacts with existing Michigan statutes:

• Michigan Campaign Finance Act: House Bills 5141, 5143, and 5144 amend this act to incorporate the new definitions of AI and materially deceptive media, as well as the disclosure requirements and prohibitions on deepfakes in political advertising. (Michigan Legislature)
• Michigan Election Law: House Bill 5144 specifically amends the Michigan Election Law to prohibit the distribution of materially deceptive media with the intent to influence election outcomes. (Michigan Legislature)
• Code of Criminal Procedure: House Bills 5142 and 5145 are companion bills that make complementary changes to the Code of Criminal Procedure, establishing the criminal penalties for violating the new deepfake and AI disclosure provisions. (Michigan Legislature)

The legislation is designed to integrate these new technology-specific regulations seamlessly into Michigan's existing legal framework for elections and campaign finance.

International Alignment

Michigan is among the pioneering states in the U.S. to enact specific legislation regulating AI-generated content and deepfakes in political campaigns. This places Michigan alongside other states like Texas, California, Washington, and Minnesota, which have also adopted laws addressing concerns about deepfakes corrupting the political process. The Federal Election Commission has also taken preliminary steps towards potentially regulating AI-generated deepfakes in political ads at a federal level, indicating a broader national and potentially international trend towards addressing these issues. The rapid evolution of AI technology has prompted jurisdictions worldwide to consider similar measures to protect democratic processes from misinformation. (CSG Midwest)

Implementation Timeline

Sources and References