Sure, but we aren't far away from a world where deepfakes are consumer off-the-shelf tech. Hearsay is probably the better historical parallel: we don't allow people to just say "Oh, X said he did it" outside of very specific exceptions, because it's too easy to fake. Photo and video evidence isn't far away from ending up in the same place, where it will be trivially easy to fake. Will that work in 100% of cases? No. But I'm curious how security companies are thinking about how to preserve the usefulness of their product.
But that would still be a world in which 99.99% of videos are real. Someone could, of course, deep fake a liquor store's video in order to falsely implicate someone in a robbery, but unless there is evidence that someone had a motive to do so, why would they? And the analogy to hearsay doesn't really work, because hearsay is excluded not simply because it is too easy to fake, but rather because the original declarant is not subject to cross-examination, and so there is no way to examine the reliability of his statement. Indeed, the fact that I can lie on the stand about what you said (i.e., it is easy for me to fake the evidence of your statement) is irrelevant to the hearsay exclusion, because I am subject to cross-examination re whether I have faked the evidence. After all, if I testify, a) "Joe said that he robbed the bank" and b) "Joe said that thought the dead guy was sleeping with his wife." neither claim is inherently more or less likely to be a fabrication by me. But #a is admissible as an exception to the hearsay rule (or IIRC, not hearsay at all under the federal rules), but #b is not.
Regardless, there is an interesting (and refreshingly brief, for a law review article) discussion of the issue here which you might find interesting; the author argues for raising the standard for admissibility of such evidence.
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Notes -
Sure, but we aren't far away from a world where deepfakes are consumer off-the-shelf tech. Hearsay is probably the better historical parallel: we don't allow people to just say "Oh, X said he did it" outside of very specific exceptions, because it's too easy to fake. Photo and video evidence isn't far away from ending up in the same place, where it will be trivially easy to fake. Will that work in 100% of cases? No. But I'm curious how security companies are thinking about how to preserve the usefulness of their product.
But that would still be a world in which 99.99% of videos are real. Someone could, of course, deep fake a liquor store's video in order to falsely implicate someone in a robbery, but unless there is evidence that someone had a motive to do so, why would they? And the analogy to hearsay doesn't really work, because hearsay is excluded not simply because it is too easy to fake, but rather because the original declarant is not subject to cross-examination, and so there is no way to examine the reliability of his statement. Indeed, the fact that I can lie on the stand about what you said (i.e., it is easy for me to fake the evidence of your statement) is irrelevant to the hearsay exclusion, because I am subject to cross-examination re whether I have faked the evidence. After all, if I testify, a) "Joe said that he robbed the bank" and b) "Joe said that thought the dead guy was sleeping with his wife." neither claim is inherently more or less likely to be a fabrication by me. But #a is admissible as an exception to the hearsay rule (or IIRC, not hearsay at all under the federal rules), but #b is not.
Regardless, there is an interesting (and refreshingly brief, for a law review article) discussion of the issue here which you might find interesting; the author argues for raising the standard for admissibility of such evidence.
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