Two Illinois laws go after ‘deep fakes’ and ‘doxxing’ beginning Jan. 1

[December 27, 2023]  By Catrina Petersen | The Center Square contributor

(The Center Square) – Illinois lawmakers all agreed to regulate telecommunication with two laws that could hold internet users civilly liable for the practice of “doxxing” and “deep fakes.”

Both laws give victims the ability to bring a civil lawsuit against an alleged perpetrator, something that concerns civil liberties advocates and media groups.

An opponent of the Civil Liability for Doxing Act and writer at Breakthrough Ideas, Laurie Higgins, said that the verbiage in the law defining “doxxing” was different from what is in the dictionary and commonly understood by people.

“The critical word in all previous definitions of doxxing is ‘private information’ … when you publish someone’s private information that is not publicly available, such as their home address … that was what has been historically considered doxxing,” said Higgins. “That is the key to doxxing, it’s the revelation of private information.”

The new law lets those who are victims of such attacks to bring lawsuits for damages against the person who posted the information. The new law says, in order to be held liable, the person must publish the information “with the intent it be used to harm or harass.”

The standard for intent was determined in Brandenberg v. Ohio by the U.S. Supreme Court. Their standard is different and more strict. That case said that speech can only be restricted if it is “directed at inciting or producing imminent lawless action and is likely to incite or produce such action.”

Higgins said according to the law, in order for an individual to be held liable for doxxing, that individual must publish the information “with knowledge or reckless disregard that the person whose information is published would be reasonably likely to suffer death, bodily injury or stalking.”

“Think about, not what the lawmakers say the law says, but about how the language could be conceivably interpreted and applied,” said Higgins. “Lawmakers frequently say things like, ‘this is the intent of the bill,’ when they know full well the legal language can be interpreted and applied in different ways.”

Higgins said the law omits the words “private information” and instead uses “personal identifiable information,” which she said could be as simple as someone’s name. Then she said the law goes too far and holds a potential “doxxer” liable if releasing that information causes someone to stalk the doxxed.

“How can you possibly predict how something you say may be used by one of the many mentally ill people we have running around in society?” asked Higgins.

Higgins said the new law says the published information must in fact result in significant economic injury or emotional distress to the subject of the information, or causes that person or their household to fear serious bodily injury or death, or causes the person whose information is published to suffer a “substantial life disruption.”

“It is so broad and vague. The publishing of information that causes someone ‘emotional distress,’ which is further defined as ‘mental suffering, anxiety and alarm,’” said Higgins. “So you can’t publish personally-identifiable information that causes them alarm?”

Higgins said this law would make it impossible to write about public figures.

State Sen. Sally Turner, R-Beason, voted for the Civil Liability for Doxing Act. Turner also co-sponsored the bill that became The Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act that also takes effect Jan. 1 2024.

The Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act holds perpetrators civilly liable for disseminating “deep fakes,” or intentionally altered images in which private sexual photos and videos are disseminated without the victim’s permission.

Turner said she has had at least three separate incidents in her district in the last year where “deep fakes” were shared without the victim’s consent.

“The latest incident … a young girl’s face on a naked body and it was getting passed around by the internet and/or by phone,” said Turner. “It was not her body, so they changed that and added her face to the body. Can you imagine how that affects a young girl?”

Turner said there was a law before the Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act that holds perpetrators criminally liable. This new law adds on to that by holding perpetrators civilly liable as well.

“Not all of the deep fake incidents get back to our office, but they do go to our state’s attorneys and it’s up to them to decide what is chargeable and what’s not,” said Turner.

Turner said civil liberties advocates and media groups were worried about both telecommunications bills being overly broad.

“When it comes to the court, the courts will make the decision how doxxing or disseminating that private information affected that individual,” said Turner. “They can interpret that when it gets to the courts. I hope that this discourages the individuals that want to hurt people.”