STAND. COM. REP. NO.  1396

 

Honolulu, Hawaii

                , 2021

 

RE:   S.B. No. 309

      S.D. 1

      H.D. 1

 

 

 

 

Honorable Scott K. Saiki

Speaker, House of Representatives

Thirty-First State Legislature

Regular Session of 2021

State of Hawaii

 

Sir:

 

     Your Committee on Consumer Protection & Commerce, to which was referred S.B. No. 309, S.D. 1, entitled:

 

"A BILL FOR AN ACT RELATING TO PRIVACY,"

 

begs leave to report as follows:

 

     The purpose of this measure is to include under the offense of violation of privacy in the first degree the intentional creation or disclosure or threat of disclosure of certain types of deep fake images or video.

 

     Your Committee received testimony in support of this measure from the Department of the Prosecuting Attorney of the County of Maui, Honolulu Police Department, Department of the Prosecuting Attorney of the City and County of Honolulu, LGBT Caucus of the Democratic Party of Hawaii, SAG-AFTRA Hawaii Local, Imua Alliance, Hawaii State AFL-CIO, International Longshore & Warehouse Union Local 142, International Brotherhood of Electrical Workers Local 1260, IATSE Local 665, Iron Workers Stabilization Fund, and four individuals.  Your Committee received comments on this measure from the Motion Picture Association - America.

 

     Your Committee finds that H.C.R. No. 225, H.D. 1, S.D. 1 (Regular Session of 2019), established the Twenty-First Century Privacy Law Task Force (Task Force) and tasked the Task Force to examine and recommend laws and regulations relating to internet privacy; the collection, transmission, processing, protection, storage, and sale of personal data; hacking; data breaches; and other similar subjects.

 

     Your Committee further finds that, among the various areas of risk the Task Force discussed, the Task Force discussed and examined deep fake technology.  Deep fake technology is the process of digitally manipulating existing audio and video to depict a person doing or saying something that they did not say or do.  Identifying false video and audio employing the use of deep fake technology can be difficult for an unaware viewer.  Additionally, deep fake technology is increasingly being used to depict individuals as engaging in sexual activity or as performing in the nude without consent or participation, with the intent of causing economic, reputational, and emotional harm.

 

     Your Committee finds that, among the several recommendations made by the Task Force, the Task Force recommended addressing the issue of deep fake technology by establishing criminal violations for those who violate a person's privacy through the creation or disclosure of deep fake videos that include the likeness of another person engaging in sexual conduct or performing in the nude without consent or participation.  This measure will protect the people of the State from the malicious use of this emerging technology.

 

     Your Committee has amended this measure by:

 

     (1)  Clarifying that the composite image or video depicting the fictitious person be a realistic photographic image or video;

 

     (2)  Applying the reasonable person standard to the fictitious image of the depicted person;

 

     (3)  Requiring that the depicted person suffer harm as a result of the realistic photographic image or video;

 

     (4)  Exempting realistic photographic images or videos that are a matter of legitimate public concern; have political or newsworthy value; or are commentary, criticism, or disclosures that are otherwise protected by the United States Constitution and Hawaii State Constitution;

 

     (5)  Changing the effective date to December 1, 2050, to encourage further discussion; and

 

     (6)  Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.  

 

     As affirmed by the record of votes of the members of your Committee on Consumer Protection & Commerce that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 309, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 309, S.D. 1, H.D. 1, and be referred to your Committee on Judiciary & Hawaiian Affairs.

 

 

Respectfully submitted on behalf of the members of the Committee on Consumer Protection & Commerce,

 

 

 

 

____________________________

AARON LING JOHANSON, Chair