Yesterday, TechFreedom filed comments in the Federal Communication Commission’s (FCC) proceeding regarding the use of artificial intelligence-generated content in political advertising. The Commission aims to require disclosure of the use of AI tools in political ads, apparently intending to put such rules into effect in the final weeks or days of the 2024 presidential election. Rushing a proceeding of this magnitude increases the risk that the final rules will be rejected by the courts, especially because the FCC aims to regulate constitutionally protected political speech.

“The FCC’s statutory authority doesn’t extend to regulating AI,” said James E. Dunstan, TechFreedom’s Senior Counsel. “The AI NPRM makes much of the FCC’s history in regulating access to the airwaves for political advertising. Of course the Communications Act of 1934 authorized such regulation. Where the FCC has gone off the rail is in reading things into the Communications Act that simply aren’t there. Moreover, the Communications Act prohibits licensee censorship of political ads. The Commission also fails to recognize that it is the Federal Elections Commission which has primary jurisdiction over the content of political advertising.”

“The NPRM’s definition of AI is overly broad,” said Andy Jung, TechFreedom’s Associate Counsel. “The NPRM conflates AI with a ‘computational technology or other machine-based system.’ This conception of AI is both broader and more simplistic than definitions used by lawmakers and courts. Because of the breadth of the FCC’s proposed definition, the rule would cover far more than AI-generated deepfakes and impersonations—extending to even mundane campaign ads created using commonplace technologies like Photoshop and audio editing software.” 

“The proposed rule is unlikely to pass First Amendment muster,” said Ari Cohn, TechFreedom’s Free Speech Counsel. “The proposed rule applies specifically to political ads; thus, it singles out political speech—which is inherently unconstitutional for the Commission to do. If the FCC proceeds, such a rule would likely be subject to ‘heightened scrutiny’—if not strict scrutiny, then at least exacting scrutiny. It would be difficult for the FCC to justify the proposed rule under either standard. As the use of AI becomes increasingly common, the rule will sweep in more and more speech; it is very far from being narrowly tailored. Moreover, courts have been skeptical of claims that the government has a legitimate interest in protecting voters from false political speech.”

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