United States - New Hampshire - Deepfake Regulation (HB 1432)

Overview

New Hampshire House Bill 1432 (HB 1432) represents a significant legislative effort by the state of New Hampshire to address the burgeoning challenges posed by deepfake technology. Enacted as Chapter 243 of the 2024 legislative session, this law focuses primarily on the fraudulent use of deepfakes, establishing both criminal penalties and civil avenues for redress. The legislative journey of HB 1432 culminated in its signing by Governor Sununu on July 19, 2024, with an effective date of January 1, 2025. The act aims to protect individuals from harm caused by digitally altered media that falsely depicts them, particularly when such alterations are intended to embarrass, harass, entrap, defame, extort, or cause financial or reputational damage.

The impetus for this legislation stems from a growing awareness of deepfake technology's potential for misuse, including incidents that have impacted political discourse and individual reputations. By creating a clear legal framework, New Hampshire seeks to deter malicious actors and provide recourse for victims. The law's scope extends beyond mere creation, encompassing the distribution and presentation of fraudulent deepfakes, and it incorporates provisions that address the conduct of lobbyists found to have engaged in such activities. This comprehensive approach underscores the state's commitment to safeguarding its citizens and democratic processes against the deceptive capabilities of advanced synthetic media.

Definitions

Central to the understanding and application of New Hampshire HB 1432 is its precise definition of 'deepfake.' The act defines a "deepfake" as "a video, audio, or any other media of a person in which his or her face, body, or voice has been digitally altered so that he or she appears to be someone else, he or she appears to be saying something that he or she has never said, or he or she appears to be doing something that he or she has never done." This definition is crucial for delineating the specific types of synthetic media that fall under the purview of the law, ensuring that the regulations target intentionally deceptive alterations rather than general digital editing or artistic expression.

The clarity of this definition is vital for law enforcement, judicial bodies, and the public, as it establishes a common understanding of what constitutes a deepfake for legal purposes. By focusing on digital alterations that create false representations of a person's identity, speech, or actions, the law distinguishes deepfakes from other forms of manipulated media. This specificity helps in the accurate identification of prohibited content and supports the enforcement mechanisms outlined within the act, thereby providing a clear standard for compliance and accountability in the rapidly evolving landscape of digital media.

Governance and Institutional Framework

The governance and institutional framework for enforcing New Hampshire HB 1432 primarily relies on existing state legal structures, rather than establishing new regulatory bodies. The act integrates its provisions directly into the state's criminal code (RSA 638) and civil actions framework (RSA 507), meaning that enforcement falls under the purview of the New Hampshire Attorney General's office for criminal prosecutions and the state's judicial system for civil claims. This approach leverages established governmental and judicial mechanisms, allowing for the immediate application of the law without the need for creating new administrative agencies or complex oversight committees. The Attorney General, as the chief legal officer of the state, is empowered to investigate and prosecute criminal violations related to fraudulent deepfakes, ensuring that public interest and safety are upheld.

For civil actions, individuals harmed by deepfakes can initiate private lawsuits, placing the burden of proof and the pursuit of damages within the civil court system. The act explicitly grants individuals a private right of action, allowing them to seek injunctive relief and monetary damages, including attorney's fees and costs. This dual approach—criminal penalties enforced by the state and civil remedies pursued by individuals—provides a robust framework for addressing the multifaceted harms caused by fraudulent deepfakes. The existing court system will interpret and apply the law, ensuring due process and consistent legal standards. While no new specific AI or deepfake regulatory body is created, the law relies on the inherent powers and responsibilities of New Hampshire's established legal institutions to govern and enforce its provisions.

Key Focus Areas

New Hampshire HB 1432 centers on several key areas to combat the fraudulent use of deepfakes. Foremost among these is the establishment of a criminal offense for knowingly creating, distributing, or presenting a deepfake with the intent to cause harm, such as embarrassment, harassment, defamation, extortion, or financial or reputational damage. This offense is classified as a Class B felony, indicating the serious nature with which the state views such deceptive practices. An additional, separate Class B felony offense is stipulated if the fraudulent deepfake results in the identifiable individual's arrest, underscoring the severe consequences for deepfakes that lead to wrongful legal action.

Beyond criminalization, the act creates a private right of action, enabling individuals who have been harmed by fraudulent deepfakes to bring civil lawsuits for damages. This includes the ability to seek general or special damages, as well as reasonable attorney's fees and costs, and injunctive relief to prevent further publication or distribution of the deceptive media. The law also addresses the integrity of the lobbying process by prohibiting the registration of lobbyists who have been convicted of fraudulent deepfake use or found liable in related civil actions. Crucially, the legislation outlines several exemptions, ensuring that the law does not stifle legitimate uses of technology. These exemptions apply to interactive computer services (as defined in 47 U.S.C. section 230), media entities reporting on deepfakes as part of bona fide news coverage (with clear acknowledgment of questionable authenticity), media entities publishing election communications paid for by a sponsor (provided the disclaimer is not altered), and content that constitutes satire or parody without relying on artificial intelligence.

Implementation Framework

The implementation framework for New Hampshire HB 1432 is designed to integrate seamlessly into the existing legal structure of the state. The act amends the New Hampshire Revised Statutes Annotated (RSA) by inserting new sections into RSA 638, which pertains to the criminal code, and RSA 507, which governs civil actions and limitations on liability. This legislative approach ensures that the provisions related to fraudulent deepfakes are codified within established legal frameworks, providing clarity for legal practitioners, law enforcement, and the public. The criminal provisions, classifying fraudulent deepfake use as a Class B felony, will be enforced through standard prosecutorial procedures by the Attorney General's office and local district attorneys, utilizing the existing criminal justice system for investigations, arrests, trials, and sentencing.

For the civil cause of action, the law establishes a new section within RSA 507, enabling individuals to pursue legal remedies through the state's civil courts. This means that victims of fraudulent deepfakes can file lawsuits to seek damages and injunctive relief, following the established rules of civil procedure. The act includes severability clauses for both the criminal and civil provisions, which stipulate that if any part of the sections is found invalid, the remaining provisions will still be enforceable. This ensures the resilience and continued operability of the law, even if certain components face legal challenges. Furthermore, the Department of State may need to make minor language changes to lobbyist registration forms to reflect the new prohibition, although this is expected to have a de minimis fiscal impact.

Monitoring and Evaluation

New Hampshire HB 1432 does not explicitly detail a formal, ongoing monitoring and evaluation framework within its text, which is typical for state-level criminal and civil statutes. However, the effectiveness and impact of the law will naturally be subject to continuous, albeit informal, monitoring through several existing mechanisms. The state's judicial system, through the adjudication of criminal prosecutions and civil lawsuits, will provide ongoing interpretation and application of the law, allowing for a practical assessment of its scope and limitations. Legal precedents set by court decisions will contribute to the evolving understanding of the act's provisions and their real-world implications.

Furthermore, the legislative body, the New Hampshire General Court, retains the inherent power to review and amend the law as necessary. Should unforeseen challenges arise, or if the deepfake landscape evolves in ways not anticipated by the current legislation, lawmakers can introduce new bills to modify or enhance the existing framework. Public feedback, reports from law enforcement agencies, and the experiences of individuals affected by deepfakes will also serve as informal indicators for evaluating the law's efficacy. While no specific agency is tasked with producing regular reports on deepfake incidents or the law's impact, the ongoing operation of the legal system and the potential for future legislative action provide a continuous, albeit indirect, form of monitoring and evaluation.

Penalties, Liability, and Appeals

New Hampshire HB 1432 establishes significant penalties and clear lines of liability for the fraudulent use of deepfakes. Any person who knowingly creates, distributes, or presents a deepfake with the intent to cause harm—such as embarrassment, harassment, defamation, extortion, or financial or reputational damage—is guilty of a Class B felony. This criminal classification underscores the serious nature of the offense, reflecting the potential for severe harm to individuals. The law further stipulates an additional, separate Class B felony offense if the fraudulent deepfake results in the identifiable individual's arrest, highlighting the heightened severity when such deception leads to wrongful legal action against a victim.

In terms of civil liability, the act creates a private right of action, allowing any person harmed by a fraudulent deepfake to bring a lawsuit against the perpetrator. Victims can seek various forms of relief, including general or special damages, which may encompass financial losses, reputational harm, and emotional distress. Crucially, the law also provides for the recovery of reasonable attorney's fees and costs incurred in pursuing such an action. Additionally, injunctive relief is available, enabling courts to issue orders prohibiting the further creation, distribution, or presentation of the deceptive media. The appeals process for both criminal convictions and civil judgments would follow standard New Hampshire judicial procedures, allowing for review by higher courts to ensure legal correctness and fairness.

Relationship to Other Instruments

New Hampshire HB 1432 is designed to integrate into and amend existing state statutes, specifically the New Hampshire Revised Statutes Annotated (RSA). The act inserts new provisions into RSA 638, which governs the state's criminal code, thereby establishing the criminal offense of fraudulent deepfake use. It also amends RSA 507, which deals with civil actions and limitations on liability, to create the private right of action for victims of deepfakes. This method of incorporating the new regulations ensures coherence with the broader legal framework of New Hampshire, avoiding conflicts and leveraging established legal definitions and procedures.

The law also acknowledges and interacts with federal law, particularly regarding exemptions. It explicitly states that its provisions shall not apply to an interactive computer service as defined in 47 U.S.C. section 230, which is commonly known as Section 230 of the Communications Decency Act. This exemption protects online platforms from liability for content posted by third-party users, aligning state law with federal protections for internet intermediaries. While the bill primarily focuses on state-level regulation, its consideration of federal statutes demonstrates an awareness of the broader legal landscape governing digital content and technology. The act also complements other recent New Hampshire legislation concerning AI and political advertising, such as HB 1596 (requiring disclosures for deceptive AI in political ads) and HB 1688 (regulating AI use by state agencies), contributing to a comprehensive state-level approach to AI governance.

International Alignment

New Hampshire HB 1432 is a state-level legislative act within the United States, and as such, its primary focus is on regulating activities and providing legal recourse within the jurisdiction of New Hampshire. The document does not contain any explicit provisions or statements regarding international alignment, cross-border cooperation, or mutual recognition with laws or regulations of other countries or international bodies. Its scope is inherently domestic, addressing concerns specific to the state's residents and legal system.

While the broader issue of deepfakes and artificial intelligence regulation is a subject of international discussion and legislative efforts globally, New Hampshire HB 1432 is tailored to the state's existing criminal and civil codes. Its exemptions, such as those referencing 47 U.S.C. section 230, are tied to federal U.S. law, further emphasizing its national and sub-national context. Therefore, this act is best understood as a localized response to a global technological challenge, without direct international alignment mechanisms embedded within its text.

Implementation Timeline

Compliance Checklist

Sources and References