EFF and Civil Liberties Groups Oppose NO FAKES Act Over Free Speech Concerns

The Electronic Frontier Foundation (EFF) and a coalition of civil liberties organizations have urged the Senate Judiciary Committee to reject the NO FAKES Act, arguing the legislation risks stifling lawful speech, including satire and commentary, by expanding federal penalties for AI-generated content. The bill, intended to combat harmful deepfakes, faces criticism for replicating the “heckler’s veto” mechanisms of the Digital Millennium Copyright Act (DMCA), according to a letter signed by 11 groups, including the American Civil Liberties Union (ACLU) and the Center for Democracy & Technology.

What is the NO FAKES Act?

Proposed as a response to the proliferation of AI-generated impersonations, the NO FAKES Act aims to hold creators and platforms accountable for distributing “non-consensual, deceptive” AI content. The legislation would establish a federal “likeness” right, granting individuals control over the use of their voice and image in digital media. However, critics argue the bill’s broad language could criminalize legitimate expression, such as political satire or parody, without clear safeguards.

According to a July 2024 report by the Congressional Research Service, the bill’s definition of “deceptive” content lacks specificity, leaving platforms vulnerable to liability for misjudging the intent of user-generated material. “Platforms may feel pressured to remove content preemptively to avoid fines of up to $750,000 per work,” the report noted.

Why are civil liberties groups concerned?

The EFF’s letter to the Senate Judiciary Committee highlights the bill’s potential to create a “chilling effect” on free speech. By mirroring the DMCA’s notice-and-takedown system, the NO FAKES Act could enable “a heckler’s veto,” where content is removed not for being illegal but for sparking controversy, the organization said. “Platforms may prioritize compliance over nuanced judgment, leading to the suppression of lawful speech,” the letter stated.

The coalition also warned that the bill’s “likeness” provisions could transfer control of an individual’s image or voice to third parties. For example, workers in the entertainment industry often sign contracts granting studios broad rights to use their likenesses, a practice that could extend to ordinary users under the NO FAKES Act. “A background actor or a social media user could lose control over their own face and voice, with federal enforcement backing it,” the letter warned.

What alternatives do critics propose?

The EFF and its allies advocate for narrower solutions to address genuine harms, such as existing laws against fraud or defamation. “There’s no need for a sweeping new intellectual property right that threatens free expression,” the letter emphasized. The groups pointed to state-level approaches, like California’s 2020 law requiring disclaimers for AI-generated media, as more balanced models.

Legal experts also note that the bill’s current language could conflict with the First Amendment. “The Supreme Court has consistently ruled against laws that restrict speech based on content without clear, narrowly tailored definitions,” said Professor Danielle Citron, a cybersecurity law scholar at Harvard Law School, in a 2023 interview.

What’s next for the legislation?

The NO FAKES Act remains under review in the Senate, with no immediate timeline for a vote. Advocacy groups are pushing lawmakers to amend the bill to include explicit protections for satire, commentary, and transformative works. “Congress must choose between addressing real harms and creating a regulatory framework that undermines free expression,” the EFF’s letter concluded.

As AI technology evolves, the debate over how to balance innovation with individual rights will likely intensify. For now, the bill’s fate hinges on whether legislators prioritize broad, precautionary measures or targeted, speech-friendly solutions.