Vermont Legislature SmartTranscripts:

[Rep. Matthew Birong (Chair)]: Alright. Good late morning, everyone. It's a committee of conference hearing on s 23. We did about an hour of committee work yesterday and worked with counsel for a period of time discussing some language changes and other possible avenues as we work through the points of contention. And, any comment from the committee right now, or do we just want to move over to council?

[Sen. Thomas Chittenden]: No, I think that'd be great if we could have Rick join us on the I think, on what I'm remembering, we adopted the New Hampshire version of 2032 with respect to a disclosure. Mhmm. Yes. And the remaining issue was definition of political candidate or individual, but maybe there's a little bit of potential avenue there as well.

[Unidentified Senator (colleague of Sen. Chittenden)]: We agreed on everything else, didn't we, mister Chittenden?

[Rep. Matthew Birong (Chair)]: Yes. We agreed to go into that that portion, where we requested counsel kind of riffing off of that New Hampshire language. We all found that to be amenable and agreeable. And then the outstanding issue is the, individual candidate versus individuals. Yes. That is the hanging order of business. And Senator is working via Zoom today and is currently digitally in virtually in house judiciary and will try to join us as soon as possible for that portion of the

[Rep. Lisa Hango (Vice Chair)]: discussion. Senate judiciary.

[Sen. Thomas Chittenden]: Yeah.

[Rep. Lisa Hango (Vice Chair)]: Is it Or senate judiciary.

[Sen. Thomas Chittenden]: Unless it's maybe joining. I don't know.

[Rick Siegel (Office of Legislative Counsel)]: Did I say house? Mhmm.

[Rep. Matthew Birong (Chair)]: Oh, whoopsie. Sorry. That was a reflex. Senate judiciary. Thank you for the catch, madam.

[Sen. Thomas Chittenden]: I'm sure.

[Rep. Matthew Birong (Chair)]: You orient my details. I appreciate it.

[Rick Siegel (Office of Legislative Counsel)]: Counsel, how are you, sir? I'm well. Good morning.

[Sen. Thomas Chittenden]: Good morning.

[Rick Siegel (Office of Legislative Counsel)]: Rick Siegel, office of the legislative council. I do have some language to show you all, to see what you think. And maybe we can start with the agreement of the disclaimer, actual text of the disclaimer. Share my screen here. I sent a request to share my screen. So what you're gonna see is I have structured this. It's a strike all. And the reason I did a strike all is, when you if you do decide to adopt this report, it'll be up or down vote in each chamber. And I recall this bill several times. Members on the floor have said, I don't see the rest of the bill. I don't know what I'm voting on. So in my legal opinion and in my empathy for you all, I think it would help your members if you had the entire bill when you're voting up or down because you can't amend it. After the report is either well, if you decide to adopt the report, however you adopt it, it's an up or down vote. You can request a new conference committee if you wanna do that, but giving you my thinking as to how to structure this. With that said, I have a strike all. Sure, I have the right document here to show you. So, language in yellow is the new disclaimer language. Nothing else here has changed from the as passed by or as proposed by the Senate version, which I'll show you in a second here. So, the suggested language, there's one thing different, and I'm going to explain why it's different.

[Rep. Lisa Hango (Vice Chair)]: Can I interrupt for just a Is there a way for us to see this electronically?

[Rick Siegel (Office of Legislative Counsel)]: So, I can email Nick the copy. I hadn't yet emailed it to him, because I hadn't yet shared the language with any committee member yet, so I wanted to make sure. But, can I show you that right now before I continue? Yes. Okay. Let me stop sharing real quick.

[Rep. Matthew Birong (Chair)]: Thank you. Of course.

[Rep. Lisa Hango (Vice Chair)]: I kind of like to scroll back and forth and

[Rick Siegel (Office of Legislative Counsel)]: Understood. Making sure this is a PDF?

[Rep. Matthew Birong (Chair)]: Yes, please.

[Rick Siegel (Office of Legislative Counsel)]: Should be there momentarily. Thank you. Shall I continue or should I wait till you get the

[Rep. Lisa Hango (Vice Chair)]: It might be helpful if she waited.

[Rick Siegel (Office of Legislative Counsel)]: I can Sorry. Oh, I can wait. Can whistle. I can't hear you soon.

[Rep. Lisa Hango (Vice Chair)]: Sing and dance now.

[Rick Siegel (Office of Legislative Counsel)]: No. Neither of those check and whistle. Extensive.

[Rep. Matthew Birong (Chair)]: It's very clear that you're stopping at the whistle.

[Rep. Lisa Hango (Vice Chair)]: Oh, senators, you don't have electronic devices, so you don't need it sent to you. Right? It's just us.

[Rep. Matthew Birong (Chair)]: They're old school.

[Rep. Lisa Hango (Vice Chair)]: Just top of the table for the house, please. It's one thing I don't think I could get used to, is all paper. Great. We have it.

[Rick Siegel (Office of Legislative Counsel)]: Okay. Yeah.

[Rep. Matthew Birong (Chair)]: Of course. Thank you, Nick.

[Rick Siegel (Office of Legislative Counsel)]: I will reshare. Okay. So now it's draft 1.1 of the report of the committee of conference. So again, skipping down ahead to the area of agreement and, highlighted language is the disclaimer that has been updated from the proposal from the Senate. This media has been manipulated or generated by digital technology and depicts speech or conduct that did not occur. So, yesterday, I showed you the New Hampshire language, which was almost exactly this exact disclaimer. However, the New Hampshire language uses the phrase by artificial intelligence technology, not digital technology. And I started thinking about that. And if you look, if you go up to our definition of synthetic media, this bill uses digital technology, AI. So, if a person makes this deceptive ad that they have to put a disclaimer on, it's possible that they did not use AI. They used Photoshop. They used some other editing software that's not AI. It is still deceptive. It is still synthetic media, but it's not AI. So, I changed artificial intelligence technology to digital technology. I'll show you actually it's already easier. In your definition of aesthetic media, you have that phrase which includes artificial intelligence. It's up to you all. You can keep this the way New Hampshire did it. I think it's not always correct that someone denied that if you have to say artificial intelligence technology, I feel like that's not always going be a correct disclaimer that the person may not have used AI. They may have used some other software. So that's I know you all agree to it and I feel bad proposing a different word or phrase, but I think it's actually more accurate on how the bill is currently structured. Waterstones.

[Rep. Chea Waters Evans (Ranking Member)]: Well, you just answered half of my question, which is, does this make it more accurate and more honed in on what we were trying to accomplish? So I think that is yes. And then second is, it make it more consistent with the rest of the bill and the descriptors that we use in the way?

[Rick Siegel (Office of Legislative Counsel)]: It's interesting. The bill does not really speak a whole lot about AI, even though you are regulating in some ways AI. I can't say this for sure. Don't know how often it's used besides right there in the definition of synthetic media. That might be the only time it's used. I'll have to double check that. But in my opinion, because you're defining synthetic media as digital technology, which includes AI, I think the disclaimer should match the definition that's being used here. That's my opinion.

[Rep. Chea Waters Evans (Ranking Member)]: Thank you. I'm supportive of this. I think it makes sense.

[Rep. Matthew Birong (Chair)]: I'm nodding as well. Yes.

[Rick Siegel (Office of Legislative Counsel)]: Yeah. Yes. Okay.

[Sen. Thomas Chittenden]: We got So are you suggesting we add the, whatever the proper pattern of speech is, including artificial intelligence in that yellow highlighted area?

[Rick Siegel (Office of Legislative Counsel)]: You could. It makes the disclaimer longer and you gotta think about your your already. That's a fairly long. Disclaimer that someone you have to say during a radio ad or a phone call.

[Sen. Thomas Chittenden]: Okay.

[Rick Siegel (Office of Legislative Counsel)]: Put on an image, put on a video. So, you could, but because you define digital technology, Okay. Just Okay. I think you're safe.

[Rep. Chea Waters Evans (Ranking Member)]: All right.

[Rep. Lisa Hango (Vice Chair)]: You just said, Rick, that we define digital technology. We actually defined synthetic media. So in the yellow highlight, should it not say this media has been manipulated or generated by synthetic media?

[Rick Siegel (Office of Legislative Counsel)]: No, so synthetic media is the media that's been altered by digital.

[Rep. Lisa Hango (Vice Chair)]: Okay, got it. Yep. Okay, so I'm good with this.

[Sen. Thomas Chittenden]: Okay, I think we're all in agreement.

[Rick Siegel (Office of Legislative Counsel)]: And then just kind of finishing up 2032, keeping the Senate inclusionary language. I didn't highlight in yellow because it's not different, but the inclusive to the greatest extent possible of individuals with disabilities that is still there, that has not been removed from the strike all. So, my understanding, only area of discussion is the definition of deceptive and fraudulent synthetic media and of synthetic really just a deceptive and fraudulent synthetic media. So I have a proposal and curious to hear what you think about it. The discussion has been, is it a ad of a political candidate that is being depicted or is an individual? The Senate version opened it up to be an individual. The House version had to be a political candidate. So the way I've structured this is kind of splitting it in the middle, kind of. So, here let me read you what it says. The intro language is the same, deceptive and fraudulent synthetic media, being synthetic media that appears to a reasonable person to be a realistic representation of a political candidate that enters the reputation of a political candidate. So, in this case, it has to be somebody running for office that is being depicted and that depiction harms the reputation of that political candidate. So, is a depiction of Chearer Birong that has him saying or doing something that hurts his reputation, whatever that may be, right? If it's a depiction of me, that, interested reputation, that would not be covered by this because I'm not a political candidate. Right? Mhmm. Okay. That's so that was in the house version originally. But then you say or so it could be either or of these as deceptive media. An individual so let me go back to the intro. Me just close this here. There we go. Much better. So, mean synthetic media that appears to a reasonable person to be a realistic representation of an individual, I'm on subdivision b, that attempts to unduly influence the outcome of an election, including a public question, by providing materially false information to voters. That language is the same, except you're at this point, you're opening up that type of ad to be anybody that will provide false information about the election, the the time, the election, the day of the election, where to vote, these types of really critical substantive things that somebody would be deceptive about. It could be anybody. Bernie Sanders, me, Schwarzenegger, my favorite example. So, that is a proposed way to do this. Doctor. Waters Evans.

[Rep. Chea Waters Evans (Ranking Member)]: Okay, so this is what I've been thinking about. So we have this phrase unduly influenced. And that is significantly more it's more serious than just saying, don't vote for Chea. She's the worst. Right. It's like actually trying to significantly affect the outcome. Well, I guess a question for Rick, so did individual Did that did the word individual and the phrase unduly influence? Were they in the previous? Oh, I have it right in front of me. Were they. Okay, they were all right. Okay, so I just I'm still a little stuck on it. Because I guess what I'm wondering is, it's the word individual that's tripping me up a little bit. So I was wondering, is there another term that could be used, like interested party or involved party? So it's like a step above candidate because A seems fine to me. A political candidate injures the reputation of a political candidate. But I was trying to find a halfway point, maybe between political candidate and any individual. And I was just trying to I don't know legally if there are any words that fall in between there that have an actual definition. But I just I hoping that there was some language or a word that would broaden it so much that it just can be like any old person. But that indicates that they somehow have the influence or the ability to to unduly influence the outcome of an election. Yeah. You know what I'm saying?

[Rick Siegel (Office of Legislative Counsel)]: Yeah. To the Taylor Swift, like Bernie Sanders, the people that we all know and maybe trust in some different way. But that really depends on the person, you know, like, if

[Rep. Matthew Birong (Chair)]: it's Yeah.

[Rick Siegel (Office of Legislative Counsel)]: If it's a depiction of of your mom or your dad, it doesn't matter to really many people except you. But if you were to see that ad, I'm just giving a really probably bad example, but I think my answer is yes. Can you can word this however you want, but is there some legally significant word that been or that bridges that gap, I don't know, except celebrity, some kind of person that everyone knows or that that's a tough one. Yes, Senator Morley. How much judicial risk

[Sen. Thomas Chittenden]: do we

[Unidentified Senator (colleague of Sen. Chittenden)]: bring to this bill if enacted law changing it from candidate to individual?

[Rick Siegel (Office of Legislative Counsel)]: So in the in part b or part a or in both? Both. So the Senate version. In other words, the Senate proposal was individual. You know, I I spoke in your committee about I'm not a judge, but California

[Sen. Thomas Chittenden]: wasn't it

[Rick Siegel (Office of Legislative Counsel)]: was a California case. Many states have passed a similar law like this that does not limit it to political. Some of them have individuals, some have little candidates. It's not really some of them ban it. So when I say that it's your you're in a kind of trepidatious environment, it's because you have these First Amendment principles that you have to be mindful of, and that is the freedom of speech so. Whenever you regulate speech that is more restrictive, then that gets more scrutiny. So when you mandate any individual in the world being depicted, yeah, that's more restrictive than just a political candidate who is running for office and literally has a stake in the game, right, compared to any person in the world. Yeah, I wish I could have a crystal ball and tell you what the court would say, but Rep. Hango.

[Rep. Lisa Hango (Vice Chair)]: So I think what RepWater7s was getting at, and correct me if I'm wrong, finding a happy medium between any old individual that people may or may not listen to, even if they're saying something false, and the specificity of a political candidate. And what first came to my mind, and this may be the wrong descriptive, is a prominent individual, which is someone well known, influential, easily noticeable in a specific field, or holding a position of authority or making significant impact. So is there something like that that we could use to qualify individual in letter B?

[Rick Siegel (Office of Legislative Counsel)]: So, can always define what that is. Prominent would be maybe a word, but yeah, like you said, you probably want to include, but who is prominent to a 13 year old is not going be prominent to a 70 year old prosthetic, probably Lisa. Yeah,

[Rep. Chea Waters Evans (Ranking Member)]: yeah.

[Rep. Lisa Hango (Vice Chair)]: So was I right that that's where you were going with that?

[Rep. Chea Waters Evans (Ranking Member)]: That is the direction which I was hoping we could head, but it seems like there might not be like. I what the word

[Rep. Lisa Hango (Vice Chair)]: I don't know what other descriptive word would fit in there, but I know where you're going with that. And I.

[Rep. Matthew Birong (Chair)]: I do the other three concept myself, like extensively, like. Away from the group. And it was like where I kept and I apologize for blurring out there. But it it was the subjectivity of what is deemed to be like an intellectual character or a celebrity status. Right? I think that's what counsel was just speaking to. It's like, there's not a lot of uniformity to that. Yes, ma'am.

[Rep. Lisa Hango (Vice Chair)]: The other thing that came to mind is a public facing individual, like a public figure, but really, any individual can be on an ad saying the election is November 2, when really the election is November 6, then people would listen to that. Oh yeah, I heard on the radio, the election is November 2, I better go vote. So I'm seeing the value in keeping it at an individual. And I think we have to remember that it's not just any old person doing any old thing, it's any old person falsely providing information that would unduly influence the outcome of an election. It's just not anybody doing anything. Right? Right. So I'm okay with that.

[Rep. Matthew Birong (Chair)]: Yes, right.

[Rep. Chea Waters Evans (Ranking Member)]: I understand that we don't want people doing this, and I understand that we would like to stop everybody from doing this. And this is like the back and forth, right? This is what we've what we had in this room before it left here and what you had in your room before it came back here and before we all gathered together is. We are trying to find that point because it's not anything that really exists in statute yet. Right. And so in my hesitation comes from, first of all, this is all new. So I think the more specific we get with our forced foray into these kinds of laws, what it's going to do, I think our. I think everybody is intended, if I speak for all of us on all the, I mean, both committees even is to say we're trying to protect the integrity of elections, and we're trying to protect the voters from being given false information. It's not so much about protecting the candidate, it's about protecting. The integrity of the election system and voting, I just I am just really still hung up. And I know that you all know this, but I'm to say it again. I'm really hung up on the free speech thing. And any any change to the language here, using the word individual that opens it up to scrutiny. And then I think if if we already know going into this that the chances of it being more solid and I know we don't have a crystal ball, we can't predict what is going to decide and maybe nothing will ever come of it. But just as far as time and money and the efforts of the attorney general or whoever else would then have to go to defend this if it came to a court case, which they would have to do, I feel like If we have an avenue to make this happen at the moment that seems clearer and safe, I would rather stick with political candidate and. And and not invite all this further scrutiny and, like, possible court decisions and stuff. Just it especially in a zone that we we haven't been in yet legally, I feel like the more conservative we are in this case, the better. I just the free speech thing is really I don't know. It's it's bothering me in that way. And I know that it's not ideal, but I'd rather be more on the side of conservative and opening it up.

[Rep. Matthew Birong (Chair)]: So, my question for counsel is having this as an AV and either or if it were to be litigated, you would probably be litigated from two different potentially two different angles, right? You would have one would be impacting a political candidate, but how it's laid out, right? Or public So it wouldn't fall into this What are the what I guess, what are

[Rick Siegel (Office of Legislative Counsel)]: the odds on both of those definitions being litigated at the same time? Well, you would have someone's ad that they made, that they didn't put a disclaimer on, be challenged by the AG through an important mechanism, and that person would sue saying that, or countersue saying that their ad didn't meet A or B. The odds that as currently written, mister chair? Yes. Here. So, of course, an individual can be a political candidate. So you could have an ad that not only injures the reputation of a political candidate, but also attempts to unduly influence out from the election. So an ad depicting I'll pick on chair Collamore this time. An ad depicting chair Collamore saying the election is on Wednesday, not Tuesday, would violate a and b. But it would be challenged on not just A or B specifically, it'd be like the entire loss on constitutional. Then the court would have to say, well, A might meet strict scrutiny, but B does not because it's too broad. That kind of thing. Does that answer your question or did I overcomplicate it?

[Rep. Matthew Birong (Chair)]: No, no, no, actually I think that answered the question.

[Rick Siegel (Office of Legislative Counsel)]: Well, a court could also sever subdivision b. Because every Vermont law, unless otherwise indicated, is severable. So a court could say, you know, b is unconstitutional, too broad, too restricted to speech and keep A.

[Rep. Lisa Hango (Vice Chair)]: I think that was your question.

[Rick Siegel (Office of Legislative Counsel)]: Okay. Yeah. I eventually got to it. No,

[Unidentified Senator (colleague of Sen. Chittenden)]: it was a good it was

[Rick Siegel (Office of Legislative Counsel)]: a good lead in, though.

[Rep. Matthew Birong (Chair)]: Yeah. And that was sort of the, like, crunch of it. Right? Like, doing, like, the either or Yeah. I'll stop there. You answered my question. Right. Hango.

[Rep. Lisa Hango (Vice Chair)]: I guess my question goes back to free speech. Are people really allowed to lie about anything and everything and that's okay?

[Rick Siegel (Office of Legislative Counsel)]: Well, to an to an extent, you have the right to lie, but then you mean there's the defamation, which, I mean, was just that I thought of something that you may be there's there's this idea in defamation that a a person in the public light, it's harder to defame that person because they're a celebrity than it is to defame a private citizen, If that makes sense. So in some ways, if you were to publish a article that defamed Taylor Swift. It would be more difficult for her to prove that because she's a well known celebrity than it would be for to defame me, a private citizen. I'm not a singer, songwriter. I'm not out there. You were talking about the difference between public and private. So there is in defamation, there is this distinction. I I would have to think about how that is actually legally determined, but it's harder to defame a well known person than it is a private citizen who keeps their stuff private, if that makes sense.

[Rep. Lisa Hango (Vice Chair)]: Except for in letter B, we're not really talking about defaming a person. We are talking about unduly influencing a public question or a different outcome of an election. So we're talking about an inanimate thing that could be altered, and anybody could go ahead and do that to alter the question or alter the outcome of the election. So based on that, it's not really about the person doing the altering, it's what they're altering, what they're influencing, rather. So, I'm okay with letter B, I think.

[Sen. Thomas Chittenden]: Yeah. I was gonna suggest a third route, but it may not be if we stuck with just a or yeah. But we included a public question somehow, but that probably muddies the water to some degree. Because a political candidate would have to provide misleading information about a ballot issue in South Burlington putting up a new gymnasium or something. I mean

[Rick Siegel (Office of Legislative Counsel)]: Well, that that was the as passed by the house. The as passed by the house limited it to a political candidate, either, you know, their reputation being harmed or that depiction misleading the public when it came to an election.

[Sen. Thomas Chittenden]: But to me, the an election seems to refer back to the election in which the political candidate is a candidate.

[Rick Siegel (Office of Legislative Counsel)]: Not necessarily. No? Not necessarily.

[Sen. Thomas Chittenden]: Oh, okay.

[Rep. Lisa Hango (Vice Chair)]: Because I'm not the election could be with you on anything. Yep. Right? Any issue.

[Rick Siegel (Office of Legislative Counsel)]: Right. We don't we don't define election. We don't find a little pan of it. So it can be yeah. Okay.

[Sen. Thomas Chittenden]: I'm gonna ask for five minutes to confer with my senate colleague, and I think we'll come back with an answer.

[Rep. Matthew Birong (Chair)]: Okay. We will take a recess for five minutes.