Published: Altering Photos Legislation - David D. Lentz, Attorney at Law

The following was written by David D. Lentz and published on a website owned solely by him:

ALTERING PHOTOS & VIDEOS: A LEGISLATIVE PROPOSAL

[With what will undoubtedly be a contentious Presidential election in 2024, now is the time to consider the following statute which if adopted by Congress could very well go a long way to making public debate on issues a lot more objective, rational and civilized. And, importantly, it could greatly reduce internet trolling and foreign influence in our elections.]

Misinformation can have very serious and damaging political, social other consequences. It can cause governmental officials to make incorrect decisions and it can cause public opinion to be swayed in the wrong direction and/or cause a considerable amount of political division. There’s no question that in these politically polarized and fragile times where various interest groups and factions on the left and the right seem to always try to control the news narrative, that taking steps to improve the ability of both policy makers and the general public to ascertain the true facts is more important than ever. Correct policy decisions cannot be made unless the true facts are first determined. Without good policy decision-making government not only fails in its responsibility to serve the people, but it may become dysfunctional as well.

Take the case of UFOs (unidentified flying objects). A few months ago, the government finally admitted basically that there are sightings of objects in the water, air, sky and elsewhere that cannot be explained. This left open the very serious possibility that aliens might be responsible. For decades the government has minimized, denied and/or tried to divert the public’s attention away from serious inquiry into the origins of UFOs—all despite arguably credible and convincing eyewitness testimony, photographs, videos and the existence of other evidence indicating that UFOs have appeared in many nations and in our oceans. This despite the fact that trustworthy witnesses like astronauts, state governors, airline and military pilots give credible testimony as to the existence of UFOs. Moreover, military personnelalarmingly tell us that UFOs have disarmed nuclear missiles and landed next to foreign airbases housing nuclear bombs.

Against this we’ve had folks who amuse themselves by making fictitious things like crop circles and/or creating Youtube videos, purportedly showing UFOs, but in reality which depict a cleverly photoshopped video designed primarily to either humiliate believers in UFOs or simply to have some kind of fun at the public’s expense.

And then there are several respectable theoretical physicists who postulate that we might well be living in something akin to a computer game-like simulation conducted by some higher beings, from who knows where, who wish merely to study us in order to suit their own purposes. Someone on Youtube recently posted a video that purported to show evidence that we are living in such a simulation. The video in question undoubtedly will be taken by some as proof that we are, in fact, living in a simulation. Suffice it to say, however, that while most may lean towards the idea that regardless of the validity of the simulation hypothesis that they believe that the video in question, while very interesting and extremely well done, is probably photoshopped. But does anyone know that for sure? No.

Also, other videos have been posted that purport to show various religious figures moving, smiling, weeping etc. The subject of religion and who or what created man is perhaps the most profound issue that there is. If that is the case, then why should the government stand idly by and allow blatantly false and/or misleading photographs and videos to be published concerning such an important topic?

Moreover, and to add to the above, there are no doubt tons of political ads and other political content that are created during the election cycle that are cut, cropped and edited in such a way so as to make the ads interesting, if not persuasive, even though they are false and misleading. And, to dangerously compound matters, sometimes the nefarious photoshopping and video editing is done by foreign actors (who would likely be adversaries of the U.S. in the event of armed conflict) who are trying to sow discord and discontent in American public—not to mention change U.S. election results.

The point is that that all of these subjects are of paramount and even existential importance. We are talking about nothing short of answering fundamental questions such as whether the Almighty exists, whether aliens can neutralize our most powerful weapons and whether our leaders are making the right decisions. All of this is not to mention the issue of the effects all the foregoing has on the question of whether we are electing the best leaders in the first place. There is no question but that tainted and doctored photographs and videos can cause civil discord, social upheaval and perhaps even bloodshed. For this reason, our governmental leaders, legislators and the general public need to take the issue of photoshopping and altering pictures and videos far more seriously.

As such, one might ask whether our leaders should not seriously consider making it a crime to knowingly manipulate, alter or change some kinds of photographs and videos in a materially misleading way? First Amendment concerns obviously creep into this discussion, but the thinking here is that fraud is not protected by the First Amendment provided, of course, that the criminal statute in question is properly crafted.

Given the foregoing, something akin to the following statutory concept should be considered and enacted. The precise language, of course, would need further refinement and/or elaboration:

It shall be unlawful for any person or entity to post or publish, or to cause to post or publish, any picture or video unless said posting or publication is accompanied by a statement containing the following:

The identity of the Content Provider or a statement that the Content Provider is unknown.

A statement that the Content Provider has certified in writing to the Publisher one of the following:

(i) That the photograph, video or depiction has not been materially altered;
(ii) That the photograph video or depiction has been materially altered; or
(iii) That it is unknown whether the photograph, video or depiction has been materially altered; or
(iv) The photograph, video or depiction is being shared and/or published for entertainment purposes only and is not intended to be a factual representation of the characters and events depicted.

The statute would then define “materially altered” as something akin to any change alteration or modification to the photograph or video so as to significantly change the appearance of the persons, objects, time, circumstances and/or events depicted in such a way so as to intentionally or recklessly mislead the audience and/or foreseeable future viewers as to the true nature of and/or the actual facts and circumstances surrounding the Content.

“Content” is the photograph or video in question. (Similar rules could be developed for audio recordings as well). However only certain “Content” would be covered by and/or subject to the rules and criminal sanctions (see below) created hereby.

The Content Provider is both the natural person as well as their employer responsible to taking the photograph and/or video.

The Publisher is the newspapers, website, blog, vlog, and/or social media platform (such as Youtube) making the Content available to more than a threshold number of foreseeable users (for example, more than 10,000). The term foreseeable includes likely recipients viewers through retweets and on social media newsfeeds etc.

The Publisher would be responsible, under some pain of some penalty, for collecting and keeping records of the certifications made by the Content Provider for purposes of complying with this law.

For videos that depict several events or scenes the representations should either make a blanket representation that the Content is altered if any of it is altered; or very briefly specify which particular scenes are altered and which are not.

The failure by the Content Provider(s) and/or the Publisher to abide by this Section shall be a misdemeanor punishable by fine not to exceed $100,000 and/or imprisonment for up to a year. In setting any punishment the court shall consider the size of the foreseeable audience, the degree of harm caused and culpability the Content Provider and Publisher. A second offense if occurring within one year shall be increase the fine to up to $1 million and with increasing fines and a fifth offense in that period shall be a felony.

First time offenders who were not regularly engaging in the business of publishing Content would be given just a warning for a first offense unless the Content in question related to: political campaigns, the biographical history or policy positions of candidates or pending legislative proposals and/or facts, circumstances and/or events of significant public interest because they affect the health, safety and welfare of the community, the state or the nation. Moreover, Publishers and Content Providers would not get the benefit of these lenient first time offender rules (where they get a mere warning for a first offense ) if the offending content pertains to UFO or other matters that are substantially likely to have national defense, environmental, scientific, economic, health or safety implications.

The statute itself could also be drafted so that it only applied where the subject matter of the photos or videos was a politician, public officials, a campaign, UAPs, religion, religious figures, the military, weapons, combat and other matters of serious public interest.

Naturally, more work is likely to be necessary on any legislation in this area. However, something like the foregoing is a good place to start.

Reader comments and suggestions are, of course, welcome.

David Dixon Lentz October 27, 2021 Corrected November 20, 2023