THE DEEPFAKES ACCOUNTABILITY ACT OF 2023118th CONGRESS, 1ST SESSION – H.R. 5586

LEGAL ANALYSIS: THE DEEPFAKES ACCOUNTABILITY ACT OF 2023118th CONGRESS, 1ST SESSION – H.R. 5586

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Prepared by: 

JACK T. MELNIK Chief Legal Analyst, The Policy Advocate

A Subsidiary of Dobromil Capital Group

Date:  May 27, 2025

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MEMORANDUM OF LAW AND BILL REVIEWIN SUPPORT OF POLICY ANALYSIS AND CONSTITUTIONAL INTERPRETATION

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I. FACTS OF THE BILL

The Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2023 (“DEEPFAKES Accountability Act”) represents Congress’s most comprehensive attempt to regulate synthetic media and AI-generated impersonation at the federal level. Introduced in the House of Representatives on September 20, 2023, by Representative Yvette Clarke of New York and Representative Glenn Ivey of Maryland, the bill amends Title 18 of the United States Code to create new criminal, civil, and regulatory frameworks addressing the proliferation of “advanced technological false personation records,” colloquially referred to as deepfakes. At its core, the bill requires that any person who produces a deepfake intended for online distribution must ensure that such material is clearly identified as altered or AI-generated. It mandates the inclusion of embedded digital content provenance—such as watermarks, metadata, or comparable authentication technology—and compels visible or audible disclosures depending on the medium. For audiovisual deepfakes, both verbal and written statements must appear, while static images must carry persistent textual identifiers, and audio recordings must include periodic spoken disclosures. The goal of these provisions is to make synthetic manipulation unmistakable to the reasonable viewer or listener.The Act establishes substantial penalties for non-compliance. Willful failure to disclose, or intentional removal of required disclosures, becomes punishable by imprisonment of up to five years when the conduct is connected to specific harms, including sexual exploitation, identity fraud, violence, or interference in official proceedings or elections. Civil penalties of up to $150,000 per record may also be imposed, and victims are granted a private right of action with statutory damages ranging from $50,000 to $150,000 per instance, depending on the severity of harm. The bill further amends existing federal statutes on false personation and identity fraud to incorporate deepfakes as a modern variant of impersonation crime. Implementation and enforcement are distributed across several agencies. The Federal Trade Commission is charged with overseeing compliance for online platforms and AI-development tools, while the Department of Homeland Security is directed to establish a “Deepfakes Task Force” within its Science and Technology Directorate. This task force is tasked with advancing detection technologies, coordinating inter-agency response, and reporting to Congress on foreign uses of deepfake media to influence elections or destabilize public discourse. In addition, online platforms and toolmakers must integrate the capability to embed provenance data and detect synthetic content, further ensuring systemic accountability. The bill explicitly exempts satire, parody, consensual film editing, and government use for national security, and authorizes the Attorney General to issue advisory opinions or waivers where compliance would unduly burden constitutionally protected expression.

II. LEGAL UPSIDES OF THE ACT

The DEEPFAKES Accountability Act offers several substantial legal benefits consistent with both constitutional principles and evolving digital-rights jurisprudence. First, it strengthens individual autonomy and dignity by creating clear legal recourse for those harmed by non-consensual or fraudulent AI impersonation. In doing so, it closes a long-recognized gap between defamation, privacy, and cyber-harassment law. By providing a federal cause of action, it offers victims remedies previously unavailable under fragmented state statutes.Second, the Act materially enhances national and electoral security. By explicitly criminalizing the undisclosed use of deepfakes in efforts to interfere with elections or incite violence, it situates digital impersonation within the same policy framework that governs foreign disinformation, espionage, and election tampering. This statutory clarity empowers prosecutors to address sophisticated misinformation campaigns using AI technology. The law’s design also comports with established First Amendment doctrine recognizing the government’s compelling interest in protecting voters from fraud and coercion, while respecting the boundary between content-based censorship and content-neutral regulation. Third, the Act modernizes legacy identity-theft and false-personation provisions of Title 18, bringing statutory text into harmony with contemporary digital realities. By expanding the definition of false identification documents to include audiovisual impersonations and biometric fakes, the Act ensures that existing fraud statutes remain enforceable in the AI era. It preserves the evidentiary structure of criminal intent, knowledge, and harm—key components that will allow prosecutors to apply the law without chilling legitimate artistic or political expression. Finally, the statute’s emphasis on transparency rather than prohibition places it squarely within the constitutional safe zone recognized by the Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). Mandating factual disclosures to prevent deception is an accepted form of regulation that does not offend the First Amendment when reasonably tailored. The DEEPFAKES Act’s approach mirrors this rationale, demanding disclosure of synthetic origin rather than suppression of speech content.

III. ANTICIPATED LEGAL DISPUTES AND CONSTITUTIONAL CHALLENGES

Despite its strong policy justification, the DEEPFAKES Accountability Act will inevitably face constitutional scrutiny. The most predictable challenge arises under the First Amendment, particularly the doctrine of compelled speech. Opponents may argue that forcing producers to label content as AI-generated constitutes compelled expression in violation of Wooley v. Maynard, 430 U.S. 705 (1977). They may also claim the law is content-based under Reed v. Town of Gilbert, 576 U.S. 155 (2015), warranting strict scrutiny.The counterargument, however, is that the law regulates deception, not viewpoint, and thus is content-neutral. Courts have historically upheld factual disclosure requirements in commercial and public-safety contexts under intermediate scrutiny when the regulation is reasonably related to preventing consumer or voter deception. Under the Zauderer framework, the Act’s labeling provisions should withstand review, particularly because they are narrowly limited to preventing misrepresentation and do not mandate any ideological message.A second area of vulnerability is vagueness and overbreadth. Terms such as “material activity,” “perceptible harm,” and “substantially derivative” could invite litigation alleging the law fails to give adequate notice of prohibited conduct, contrary to Grayned v. City of Rockford, 408 U.S. 104 (1972). However, the Act mitigates this risk through explicit definitions, enumerated intent requirements, and a mechanism allowing producers to seek advisory opinions from the Department of Justice before distribution—thus providing the kind of clarity that courts have found sufficient to defeat vagueness challenges.A third line of dispute concerns the Act’s interaction with Section 230 of the Communications Decency Act (47 U.S.C. § 230). Online platforms may claim that mandated detection systems and provenance insertion violate their statutory immunity for third-party content. Yet Congress has authority to carve out specific exceptions, as demonstrated in the FOSTA–SESTA amendments addressing online sex trafficking. Because the DEEPFAKES Act imposes duties focused on transparency and technical compliance rather than liability for user content, it is likely to be viewed as an acceptable, narrow exception consistent with Section 230’s purpose. Finally, potential federal–state overlap may generate preemption questions. Numerous states have enacted their own deepfake laws, varying in scope and severity. The DEEPFAKES Act expressly preserves these measures, stating that it does not preempt stricter state provisions. Thus, the Act functions as a federal floor rather than a ceiling, minimizing preemption risk and promoting uniform minimum standards.

IV. RELEVANT CASE LAW AND JUDICIAL OUTLOOK

The constitutional durability of the DEEPFAKES Accountability Act can be assessed through established jurisprudence. In Zauderer v. Office of Disciplinary Counsel (1985), the Supreme Court upheld mandatory factual disclosures in attorney advertising, reasoning that such regulation was permissible when directed at preventing deception. Similarly, in Central Hudson Gas & Electric v. Public Service Commission (1980), the Court reaffirmed that truthful, non-misleading information requirements survive intermediate scrutiny. These precedents strongly support the Act’s labeling mandate as a narrowly tailored mechanism to advance transparency without suppressing speech.By contrast, United States v. Alvarez, 567 U.S. 709 (2012), recognized that false speech is generally protected unless it produces concrete harm such as fraud or defamation. The DEEPFAKES Act fits squarely within Alvarez’s exception by restricting only deceptive impersonation that causes tangible injury—economic, reputational, or physical—and by preserving satire and artistic use. In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Court struck down overly broad online-speech restrictions, emphasizing the need for precision. The Act’s detailed definitions and intent requirements appear designed specifically to meet Reno’s precision standard. Furthermore, the Act’s provisions combating election interference align with Brandenburg v. Ohio, 395 U.S. 444 (1969), by targeting only incitement or deception likely to produce imminent harm.Judicial analysis would likely apply intermediate scrutiny, balancing the government’s compelling interest in preventing fraud and protecting democratic institutions against the minimal expressive burden imposed by factual disclosure. Under that standard, the Act is defensible. Courts are also apt to view the private right of action and sealed-filing provisions as consistent with the procedural privacy protections recognized in Doe v. Bolton, 410 U.S. 179 (1973), and subsequent cases involving sensitive personal information.

V. ANALYST OPINION OF THE LAW

The DEEPFAKES Accountability Act is not merely a policy measure—it is a constitutional necessity. The unchecked proliferation of AI-generated falsehoods poses a direct and imminent threat to the rule of law, electoral integrity, and public order. In a legal ecosystem dependent on authenticity, deepfakes are chaos incarnate. They corrupt evidence, fabricate speech, and dissolve the line between truth and manipulation.

Congress has properly grounded this legislation in long-standing doctrines of fraud, false personation, and compelled disclosure. The Act does not censor expression; it demands transparency. Under Zauderer and Central Hudson, factual labeling requirements designed to prevent deception are constitutionally sound. The First Amendment protects opinion—not algorithmic deceit.

Opponents who frame this as government interference ignore the fundamental principle that liberty without truth is anarchy. A republic cannot function when evidence itself becomes suspect. The Act restores accountability by mandating provenance, disclosure, and recourse. It ensures that identity remains verifiable and that falsification carries consequence.

In short, this law is not a restraint—it is a restoration. It reaffirms that in a society governed by laws, even artificial intelligence must answer to the truth.

Respectfully Prepared and Submitted by:

JACK T. MELNIK; Chief Legal Analyst – The Policy Advocate

A Subsidiary of Dobromil Capital Group

Dated: May 27, 2025