By David Nash, Esq., Director of Legal Education and National Outreach
The nightmare scenario has played out in schools here in New Jersey and across the country, with students and adults using artificial intelligence to create realistic looking audio or visual images of another person, often involving the creation of sexually explicit imagery. But new laws enacted at the federal and state levels have passed that are intended to provide new tools to address this horrific situation. On April 2nd, Governor Murphy signed into law P.L. 2025, c. 40, which addresses the dangers of improper use of “deepfake” technology and establishes civil and criminal penalties for the production and dissemination of deceptive audio or visual media. At the federal level, the “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act” or TAKE IT DOWN Act passed via a unanimous vote in the U.S. Senate and by a vote of 409-2 in the House of Representatives and was signed into law by President Trump on May 19th.
In this article, we will review the key aspects of the new state and federal laws, what they mean for New Jersey school districts, and related laws that may come into play when school officials confront the use of deepfakes targeting students and/or staff members.
What is a Deepfake?
In a sign of the times, the term “Deepfake” has been formally recognized. Britannica defines “deepfake” as “synthetic media, including images, videos, and audio, generated by artificial intelligence (AI) technology that portray something that does not exist in reality or events that have never occurred.”
Under the New Jersey law, “Deceptive audio or visual media” means “any video recording, motion picture film, sound recording, electronic image, photograph, any technological representation of speech or conduct substantially derivative thereof, or any forgery or facsimile of a document or writing, that appears to a reasonable person to realistically depict any speech, conduct, or writing of a person who did not in fact engage in the speech, conduct, or writing, and the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate the person.”
Under the federal law, “digital forgery” is defined as “the creation, alteration, or manipulation of visual depictions using digital technology to falsely represent an individual in a nonconsensual intimate visual depiction. This includes techniques like deepfakes and other forms of digital manipulation.”
While these definitions vary somewhat, the core elements are the same. Something has been created electronically (involving audio and/or video) that realistically appears to depict something that didn’t actually occur.
Horror Stories in New Jersey and Around the Nation
Deepfakes have infiltrated every aspect of our society, from political figures to entertainers to, of course, students and staff members in our schools. A survey conducted by the Center for Democracy & Technology found that 40% of students and 29% of teachers reported knowledge of deepfakes depicting individuals associated with their school being shared during the 2023-24 school year. These numbers are expected to be even higher for the 2024-25 school year. Examples in schools include:
- In October 2024, a group of boys at a New Jersey high school made fake nude pictures of girls in their class using AI. This caused a lot of anger, and parents and others in the community wanted those responsible to be held accountable.
- In January 2025, a Baltimore high school’s sports director made a fake audio recording of the principal saying racist and antisemitic comments. This fake recording spread quickly and caused significant problems at the school.
- A student in Texas made and shared fake, inappropriate pictures of a teacher online, showing this problem isn’t just between students.
Key Aspects of New Jersey Law
The New Jersey law, P.L. 2025, c. 40, establishes *criminal and civil penalties* for creating or sharing deceptive media. The law aims to deter misuse of deepfake technology while protecting First Amendment rights.
The law creates the potential for criminal conviction for the improper creation, use or dissemination of AI. This includes a crime of the Third-degree for creating or using deepfakes to commit other crimes. The potential penalties for a Third-degree crime in NJ include a term of incarceration ranging from 3 to 5 years, a felony conviction on your criminal record and potential fines. The new AI law also creates a crime of the Fourth-degree for disclosing deepfakes knowingly or recklessly. The potential penalties for a fourth degree crime include: Up to 18 Months in State Prison.It should be noted that there is a presumption of non-incarceration for first time offenders and options such as Pre-Trial Intervention may be available for those convicted of Third or Fourth degree crimes. The law also provides for possible fines up to $30,000.
The New Jersey law also clarifies the right for victims to bring civil claims. Importantly, the law allows for victims to sue for actual damages, punitive damages, and attorney’s fees. The ability to collect attorneys fees removes a significant barrier for many victims to pursue civil claims.
The State law does carve out specific exemptions from criminal and civil penalties. This includes an exemption for “Fair Use”, which is defined as use for “criticism, comment, satire, parody, news reporting, teaching, scholarship, or research.” It also includes exemptions for interactive computer service providers, cloud services providers, and commercial developers of AI technology. These exemptions are an attempt to balance the protection of individuals from harmful deepfakes with the preservation of legitimate uses of the technology.
The state law went into effect immediately as of its signing on April 2nd. For more information, see the announcement by Governor Murphy’s office of the signing of the State law here.
Key Aspects of Federal Law
The TAKE IT DOWN Act was signed into law on May 19, 2025. The Act aims to create new criminal penalties for offenses victimizing minors and adults, and further aims to require covered platforms to remove nonconsensual intimate visual depictions. The criminal prohibitions take effect immediately, while covered platforms have until May 19, 2026 to establish the required notice-and-removal process.
Under the federal law, offenses involving adults can result in fines and imprisonment for up to 2 years. Offenses involving minors as victims can result in fines and imprisonment for up to 3 years. The federal law also covers threats to disclose AI depictions as a form of coercion or blackmail. The criminal prohibitions consist of seven separate offenses: (1) publications involving “authentic” intimate visual depictions of adults; (2) publications involving authentic visual depictions of minors (under 18); (3) publications involving digital forgeries of adults; (4) publications involving digital forgeries of minors; (5) threats involving authentic intimate depictions of adults or minors; (6) threats involving digital forgeries of adults; and (7) threats involving digital forgeries of minors. As these are criminal offenses, the government bears the burden of proving each element beyond a reasonable doubt.
Under the federal law, covered platforms must establish a process no later than May 19, 2026 for individuals to notify and request the removal of nonconsensual intimate visual depictions. Covered platforms include websites and services that host user-generated content. Platforms must remove such depictions within 48 hours of receiving a valid request. The Federal Trade Commission (FTC) is responsible for enforcing the provisions of the Act related to covered platforms. Non-compliance is treated as an unfair or deceptive act under the Federal Trade Commission Act. The requirement for covered platforms to cooperate in removing deepfakes provides critical leverage for victims, parents, and school officials to mitigate the harm from deepfakes by having platforms remove access to the content in a timely manner.
For more information on the TAKE IT DOWN ACT, see the summary and analysis from the Congressional Research Service here.
Related Legal Requirements
School officials should keep in mind that AI deepfakes may run afoul of many other state and federal laws as well. For example, such behavior could be a form of harassment, intimidation or bullying that must be addressed. In some cases, it may also be a form of dating violence, if, for example, a dating partner seeks to coerce another student to engage in sexual acts or remain in a relationship by threatening to release deepfake images of their dating partner as a means of exercising control over their dating partner. The use of such images could also be a form of sexual harassment that is covered under Title IX. Or the deepfake could be a bias-related act that is a form of discrimination covered under the New Jersey Law Against Discrimination and/or other state or federal discrimination laws, which may also trigger reporting requirements to both local law enforcement and the county prosecutor’s office. See the LEGAL ONE article on reporting obligations for bias-related acts.
Key Considerations for School Districts for Moving Forward
Moving forward, school districts should review existing policies and protocols in light of the new state and federal laws regarding deepfakes, and consider where revisions may be appropriate. Possible actions to consider include:
- Given the new obligations placed on platforms, school districts may want to consider proactively reaching out to platforms that have deepfake content with students or staff members and demanding that the content be removed would be a prudent step to include as part of a district’s effort to mitigate the harm caused by deepfakes;
- Taking steps to raise awareness of the new laws among staff members, parents and students;
- Reviewing the Memorandum of Agreement in light of the new criminal offenses that school officials may become aware under the revised federal and state laws;
- Incorporating a process to review the authenticity of video, audio and images and the potential that they are in fact deepfakes as part of conducting investigations into alleged staff or student misbehavior;
- Exploring the use of available tools that may assist in spotting deepfakes; and
- Reviewing policies and protocols to clarify the appropriate use of technology that allows the creation of audio and video that appears to be from individuals, such as the use of such technologies where appropriate to simulate speeches from historical figures.
By taking the time to raise awareness, review district policies and protocols, and act where appropriate, school districts can effectively utilize the new state and federal laws on deepfakes to enhance protections for students and staff members in our schools.