Bill aims to close loophole in Arizona 'revenge porn' law: Images created with AI

Arizona lawmakers are moving to close a technological loophole in a law designed to protect victims against "revenge porn.''

SB 1462 is nearing a final vote at the Legislature.

A 2016 Arizona law already makes it a felony to distribute nude or sexually explicit photos of other without their consent. These often arise from situations when a relationship ends and the jilted partner decides to make public naked photos of the other person -- photos that may have been made with that person's consent but clearly were not meant to be shared.

But the law doesn’t cover items made using artificial intelligence or software like Photoshop.

Republican Sen. J.D. Mesnard sponsored the existing law and this new legislation that he says closes a loophole.

“AI which is an exciting and frightening new technology. So this is trying to get at how that might be used in a very similar way to generate what are very realistic looking nude pictures that are then shared for the purpose of hurting somebody," Mesnard said.

The measure was amended after lobbyists raised First Amendment issues, like images made for parody, artistic expression or political speech.

The bill now goes to the House floor.

Pushback from ACLU, others

Mesnard could not get the measure approved as originally crafted after it raised concerns from the Arizona chapter of the American Civil Liberties Union.

"I think the bill violates the First Amendment without some sort of protection for persons who are engaged in parody, artistic expression, political speech'' said lobbyist Marilyn Rodriguez. She said courts have concluded that these are protected -- even if it is "a vulgar image of a politician.''

"Those images may harm a politician or a famous person but can also be protected speech,'' she said. And Rodriguez said she doubts that is what Mesnard is trying to prevent.

Mesnard agreed to alter the measure to create exceptions for "an image made in the public interest, including scientific or education activities, a newsworthy or on (an) issue of public concern.''

But Rodriguez made it clear that her organization still has concerns about the breadth of the measure -- especially the possibility of someone being subject to a prison term of 2 1/2 years.

She said that it is so broad that is applies to someone who takes a picture of someone else who the person sees or knows and digitally altering it.

"It's far less intimate,'' Rodriguez said, than the original law that involves sending out photos that someone has shared in a relationship.

"I certainly wonder if it deserves a Class 4 felony designation,'' she said. "It certainly seems like it's criminalizing far more conduct than just the original revenge porn statute.''

And there's something else.

"We are really concerned that young people who are prone to mistakes and lack access to sexual education and education about the internet could be facing Class 4 felonies for jokes,'' she said.

The ACLU isn't the only one worried about the breadth of the bill.

Kathryn Krejci, a volunteer attorney with Arizona Attorneys for Criminal Justice, pointed out that the original revenge porn law required prosecutors to prove that the person in the image had "a reasonable expectation of privacy.'' But Krejci, whose organization is composed of lawyers who defend people accused of crimes, told lawmakers that SB 1462 removes that requirement -- and in a way that would allow charges to be brought against people who distribute images where the person in the photo had no such expectation.

Mesnard, however, said that change applies only to digitally created images. He said that since those depicted had no way of knowing someone was crafting the photo there would be no way for them to have a reasonable expectation of privacy.

Not everyone on the House Judiciary Committee was buying that explanation -- or convinced that what Mesnard is proposing is just a minor change in the law.

Rep. Alexander Kolodin said he agrees with Krejci's interpretation that the legislation would make criminals out of those who share images where the person depicted has no expectation of privacy.

Consider, said the Scottsdale Republican, a scenario where he might decide to "tear naked through the floor of the House'' and the act was captured by a news reporter on camera.

"That would then be a crime even though I had no reasonable expectation of privacy because I was on the floor of the House?'' Kolodin asked as he cast the lone dissenting vote on the measure.

The measure, which already has been approved by the Senate, now goes to the full House.