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Deepfake revenge porn distribution now a crime in Virginia

Using the internet to distribute negative images is not new, but the means of creating and distributing the images continues to evolve. Since 2014, Virginia has defined the non-consensual distribution of nudes or sexual imagery of a person as a Class 1 misdemeanor.

Such images are often referred to as "revenge porn" because they are often used to inflict emotional pain or to intimidate the person in the image. Until recently, most images used in revenge porn were digital images of the victim that had been captured by a digital camera or cell phone. Now the internet has produced a new form of revenge porn: fake images of the victim created by digital editing of a non-offensive photograph.

These images are called deepfake photos, and they were not covered by Virginia's law banning nonconsensual digital pornographic photographs. Until March 2019, that is. In March the Virginia General Assembly amended the law making revenge porn a misdemeanor by adding the phrase "falsely created videographic or still image" to the statute. Governor Northam signed the bill later in March, but it did not become effective until July 1.

The problem of deepfake pornography is becoming more widespread as software advances are making the images both more realistic and more difficult to detect. With the amendment of its existing ban on revenge pornography, Virginia has become one of the few states to attempt to ban deepfake images and videos that are intended to cause pain and embarrassment. More states can be expected to consider similar legislation, and various members of Congress seem intent on crafting a federal statute that would have a similar effect. Those who find themselves accused of committing these types of criminal offenses face the very real possibility of serious penalties, which is why they need to be thoughtful in how they craft their criminal defense strategies.

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