Deepfakes in Family Law

The growth of AI and deepfake technology can have dystrophic consequences for the legal system, particularly in family law. A deepfake video or voicemail can damage a parent’s credibility, shift support awards, or change custody decisions based on fake evidence or by undermining real evidence. As deepfakes become more popular, family courts must distinguish truth from technology-fueled fiction.

A “deepfake” is an edited image, video, or recording that has been altered. The deepfake may portray a person who was not actually present, wearing something that they were not wearing, or doing something they were not doing. “AI” stands for artificial intelligence, which can be used today to generate deepfake evidence.

Some deepfakes are made in jest and are very obvious, such as inserting SpongeBob into a prom dance. Other deepfakes may be for commercial purposes, such as with the Star Wars movie Rogue One, where a young-looking Carrie Fisher and Peter Cushing “reprised” their roles from the original movie. Deepfakes can also be used for propaganda purposes, sometimes to bolster politicians like Donald Trump and Gavin Newsom, and sometimes to undermine them.  

Most alarmingly, deepfakes can also be used to create false evidence for use in court. For instance, a deepfake video could be created to show a man hitting a woman even though that event never occurred. Deepfakes can also be used to create pornographic videos by putting the face of a person onto the body of a porn star. Celebrities, particularly women, have been victims of deepfake pornographic images. The technology has also been used as part of “revenge porn,” where people put the faces of their exes on nude bodies for blackmail or just malicious purposes.    

Conversely, technology can also cast doubt or even destroy trust in real evidence. Even if real evidence is presented to the court, the opposing party could object to the video or audio as a “deepfake.” Judges may exclude real evidence or give it little weight.

Expert Testimony to Prevent Deepfakes

Authenticating digital evidence often requires metadata, expert testimony, or forensic analysis. Text messages, videos, and other digital files leave behind digital footprints that an expert witness, such as a digital investigator, can examine. If this “digital footprint” doesn’t match the evidence, the expert can testify in open court about the discrepancy and present the offered deepfake evidence.

For instance, a video with metadata that establishes a creation date one day prior to the trial may not be real if the party offering the video as evidence claims it is a video of a fight taken a year prior. An expert would have to explain to the court what metadata is and how metadata shows the date of creation.

Authentication to Prevent Deepfakes

In many jurisdictions, digital files must be authenticated before they can be used as evidence at trial. A party introducing a digital file, such as a video, audio, or text, must demonstrate that it is what the party claims it is. At a minimum, the person who recorded the video or wrote the text must testify when and where they created the digital file. That person can be questioned under penalty of perjury to ensure that the evidence offered has not been edited or distorted in any way. Authentication may drag out the time for litigation, but it is necessary to ensure real evidence is admitted and false evidence excluded.

Do I Need a Lawyer for My Family Law Issue?

If you have difficulty seeing your child as the holidays approach, you should contact a family lawyer today. A skilled family lawyer can answer your questions, provide guidance on your case, and represent your best interests in court.