Senate committee weighs S.23 disclosure rules for synthetic media in elections

The Senate Government Operations Committee on Feb. 4 heard testimony on S.23, legislation that would require disclosure of synthetic media used in elections and create a private right to seek injunctive relief. Supporters framed the bill as a disclosure regime designed to protect voters, while broadcasters warned of conflicts with Federal Communications Commission rules and urged clarifying edits.

Elana Beller, organizing manager for Public Citizen, testified in strong support of S.23, outlining the bill’s key design choices and offering national context. “I am very grateful to be able to testify in strong support of s 23 today,” Beller said. She defined a deepfake for the committee as “a representation generated through technology, frequently artificial intelligence … that shows either via an image, video, or through audio, someone saying or doing something that they never actually did or said in real life.”

Beller told senators the draft follows what she described as a widely used model in other states: a narrow definition of falsified media that targets content providing viewers a “fundamentally different understanding” of a person’s speech or behavior, a disclosure requirement rather than an outright ban, and a knowledge standard so that only those who knowingly distribute synthetic media can be held liable.

The bill also would typically take effect within a window before elections — Beller said 90 days before an election is a common choice — and would allow affected parties to seek injunctive relief to remove fabricated content quickly. Beller cited recent examples where synthetic media circulated around elections, including an audio deepfake circulated in Slovakia days before voting and a robocall deepfake of President Joe Biden in New Hampshire’s primary, to illustrate risks to voter information.

Broadcasters and cable representatives urged targeted edits to avoid putting stations between state and federal obligations. Wendy Mays, executive director of the Vermont Association of Broadcasters, recommended altering the draft definition language so deceptive content “appears to a reasonable person to be an authentic recording,” a change Mays said would avoid sweeping in clearly labeled reenactments, docudramas or other legitimate content. "This subtle difference could theoretically impact news, reenactments and docudramas where viewers understand they're watching a recreation rather than actual footage," she told the committee.

Mays also flagged two federal rules that can conflict with state requirements: the FCC’s so-called no-censorship rule (which generally prohibits broadcasters from editing paid political ads) and the equal opportunities (equal time) rule, which can obligate stations to sell matching ad time to opposing candidates. Mays asked the committee to remove or reword a provision that would require broadcasters to make a “good faith effort” to determine whether content is synthetic, saying that standard is vague and could force stations to choose between complying with federal law and state law.

Representatives of the cable and private operator trade group echoed the broadcast concerns, urging that liability rest with those who generate or pay for the ads rather than with platforms or stations that merely transmit content. "You really don't want the broadcast station and the platform to be in a position of determining who gets to air and who doesn't," John Dillon of the New England Connectivity and Telecommunications Association (Connecta) said.

Rick Sengel, legislative counsel, advised the committee about drafting choices and litigation risks. Sengel noted the bill does not define “election,” which he said would leave the term to judicial interpretation and could extend coverage to any election at any level unless the committee amends the language. He also flagged recent litigation in California: a court issued an injunction against that state's synthetic-media law after finding drafting defects and constitutional issues in the way certain labeling requirements were written; Sengel and witnesses said that decision is likely to shape how other states draft disclosure provisions.

Committee members asked several questions about enforcement, sanctions and whether a disclosure regime is strong enough to deter bad actors. Beller and other witnesses said many states have pursued disclosure-based approaches out of concern that a broad ban could run into First Amendment challenges; they said the bill’s knowledge standard, injunctive-remedy option and exemptions for bona fide news coverage aim to balance speech and election integrity concerns.

No formal vote occurred. Committee members indicated the discussion will continue in coming weeks as staff and witnesses work on technical edits and address the broadcast industry’s suggested clarifications.

Ending: The committee paused to take more testimony at a later date; no legislative action was taken Feb. 4.