Back in the 1970s, there was a television commercial featuring jazz singer Ella Fitzgerald with a wine glass, a recording studio, and a recordable audio cassette made by a company called Memorex. The pitch was that the audio recording of Ella’s voice could break the wine glass, just like her live voice. The tagline was, “Is it live or Memorex?”

Courts and the Deep Fake Problem

Courts may soon be facing a similar question when it comes to audio evidence, photos, videos, and various other forms of digital evidence: is it real, or is it fake?

Indeed, in the midst of the excitement about General AI and its potential benefits for legal professionals, a critical risk to our justice system is often overlooked: the threat posed by deep fakes. Deep fakes are artificial replications of things like images or voices that are not real. They are false, yet they pose a significant issue.

Consider voice cloning. An example of a voice deep fake is the recent fraudulent robocall that used a voice resembling Joe Biden’s,. The fake Biden voice asked people not to vote in the New Hampshire primary. The voice sounded just like Joe Biden’s, but it wasn’t. Such voice cloning presents serious authentication risks in courtrooms.

Similarly, the realm of fake photos and videos is evolving. Altering photos isn’t new, but today’s technology is both more accessible and sophisticated. It’s now easy to remove a person from a photo or add someone into a scene they were never in. Spotting fake videos is increasingly challenging, as I have discussed before

And it goes beyond that. Recall the controversy at the Kyle Rittenhouse murder trial in Wisconsin,. In that case, photographic evidence, enlarged using pinch-to-zoom tools, was deemed inadmissible. The media went on a feeding frenzy with the notion the Judge was out of touch and was being a little anal. But consider today’s extensive photo editing capabilities. At what point does a photo no longer fairly represent what is depicted? When does a photo stop representing reality? What standards should be applied?

Thoughts From a Judge

Judge Scott Schlegel, a Judge on Louisiana’s Fifth Circuit Court of Appeal and a member of the Advisory Council of the ABA’s Task Force on the Law and Artificial Intelligence, is one of the most technologically savvy and insightful judges around today. He was recently interviewed on a podcast called Tech and Gavel about the risks of deep fakes.

It’s a rip in the fabric of our evidentiary process

He focused on the risks of voice cloning, but his comments also apply to any digital evidence. Says Judge Schlegel about digital evidence, “The ramifications are profound…and can undermine the evidentiary foundations we rely on. It’s a rip in the fabric of our evidentiary process…We are faced with not just interpreting the evidence but authenticating it at a foundational level. The potential to falsify evidence in a way that’s indistinguishable from the truth is a real Pandora’s box for the legal system.”

Judge Schlegel also believes, “We have to get smarter about digital forensics. We need to understand the science behind voice cloning and maybe even develop new standards for what constitutes admissible evidence.” He is convinced that courts and all involved in the legal process need better training about digital technology and that there needs to be more support for education in this area. 

He also thinks we need to confront some serious policy issues: “We have to consider modernizing our courts but also our laws. We need laws that are as up to date as the technology we are trying to regulate.”

Finally, Judge Schlegel identifies a real risk for those litigants who don’t have the financial capacity to challenge or defend digital courtroom in judicial proceedings. “We need to be sure all parties have access to the digital tools to challenge or defend digital evidence.”, perhaps resorting to court appointed digital experts.

Solutions Anyone?

All that is well and good and spot on. But deep fakes will be a real problem, particularly at the state court level. Funding for state court judges is already often constraining. They are precious few funds and programs to assist Judges in dealing with the challenges presented by deep fakes. And they don’t have the staff to help them sort through the issues. Judges will be undoubtedly faced with a battle of the experts with respect to digital evidence.  They may have little choice but to make decisions with little background and understanding.

Certainly, some judges, like Judge Schlegel, are way up the learning curve and can deal with the issues in a sophisticated manner. But many can’t, leading to a lack of consistency in the judicial process that’s unfair and undermines the whole notion of the role of law.

Perhaps technology itself can provide an answer. Late last month, Nikon, Sony, and Canon announced they were developing technology that would embed digital signatures in images that would enable them to be distinguished from altered images. This comes on the heels of a Google announcement last year that it was developing a watermark that would alert viewers to the same.

That will help, but it’s not uniform. Judge Schlegel is right, we need better laws. But given our political climate, the idea that laws could be passed to require these sorts of verification of authenticity or lack of alteration is not likely to happen anytime soon.

Technology isn’t inherently good or bad. It’s a tool

It’s a real dilemma, and I fear a tsunami of issues. The best we can hope for is more companies will be like Nikon. As practitioners, we can push for the kind of support from legislatures for our Judges. And we can recognize that all of us are responsible for preventing this kind of evidence from being used. Perhaps we need new ethical rules to pinpoint the risks and obligations of lawyers.

Judge Schlegel concluded the podcast with one final observation: “Technology… isn’t inherently good or bad. It’s a tool. We have a responsibility in the legal field to ensure it’s a tool for justice”. Indeed.

By the way, the voice on Judge Schlegel’s Tech and Gavel podcast? It’s fully voice cloned. (For more information, go to Judge Schlegel’s podcast webpage)

You can hear more from Judge Schlegel and another tech-savvy judge, Judge Herbert Dixon, at next month’s ABA TechShow in Chicago. Both are speaking. The title of their presentation is Embracing the Digital Courtroom: Exploring Current and Future Trends.