A “deepfake” is an image, audio or video file that has been altered to make it appear that it is something other than what it is. Software to alter files is increasingly available to hobbyists and others online, and that may mean that it will soon become prevalent in court cases.
Deepfakes can be extremely convincing. Some fakes are made using all of Hollywood’s special effects technology, while others are cheaply made using home editing software. Either way, they can seem quite real.
It’s a nightmare, really. You’ve been arrested for something you know you didn’t do, and the prosecution claims to have video evidence to prove it. Or, you’re in the midst of a child custody battle and your ex claims to have video proving you’re not safe for the children to be around. You know you’re innocent, but how do you prove that against a video? And why should you have to?
It’s not entirely unknown. In a recent child custody case in Britain, a woman claimed her husband was dangerous and that she had a recording of him making threats. Experts studied the metadata on the recording and found that it had been altered using widely available software and online tutorials.
Unfortunately, as time and technology move on, this will only become more prevalent. It will be harder to spot deepfakes and harder to unmask them when they are identified as questionable.
How should the courts handle faked files?
Courts could basically choose two ways to handle electronic evidence in the first place. For one, they could do as they always have and allow the evidence in. Then, it would be up to the opposing attorney to demonstrate that there is something fishy going on.
Or, they could change the rule so that electronic evidence must always be authenticated before it can be admitted. This would presumably serve to reduce the number of deepfakes that get admitted as evidence, but it could quickly drive up the cost of litigation.
The courts have seen faked evidence before
In general, courts are very aware of the possibility that bad-faith actors could attempt to introduce questionable evidence. Forgeries and fakes have been around a long time; they just haven’t been as convincing as they can be now.
If you believe the other side will introduce a deepfake into evidence, the best thing you can do is tell your attorney and explain why you believe the evidence is a deepfake. At that point, your lawyer can bring in experts to evaluate the evidence and attempt to show that it is, more likely than not, problematic.