On April 19, 2024, the U.S. Department of Education announced: Updated Title IX Regulations Through Title IX litigation, we have made clear that schools can bring harassment cases using non-consensual, sexually explicit deepfakes. Title IX A federal law that prohibits sex discrimination in educational programs and applies to all public and private elementary and secondary schools, school districts, colleges, and universities (“Schools”) that receive federal funding; Includes governance regarding the school’s response to complaints of gender discrimination. sexual harassment or sexual assault.

What is a deepfake?

“Deepfake” means “ synthetically created or manipulated Use some form of machine or deep learning (artificial intelligence) technology. ” Sexually explicit deepfake images can include face-swapping, replacing one person’s face with another’s face, or “undressing” a clothed image to appear nude. method can be used to generate it. Deepfakes and the artificial intelligence technology that generates them are increasingly sophisticateddifficult to detect and widely accessible to anyone using a computer or smartphone app for little or no cost.

Over the past two years, there have been numerous incidents in schools where students have created deepfake media. other students’ or teacherschool personnel as well as creating them colleague staff The reasons range from impersonating teachers and expressing offensive messages to sharing sexually explicit images and videos. As educational institutions grapple with how to respond to advances in AI, these deepfake incidents raise further concerns about how to protect students, staff, and administrators, as well as how to protect students, staff, and administrators should an incident occur. You also need to know how to deal with it. In this blog, we discuss how the recently updated Title IX regulations apply to deepfake incidents and provide four tips on how schools can prepare to respond.

How does Title IX apply to deepfake incidents in schools?

of New Title IX Rules Updated the definition of “sexual harassment” to include “nonconsensual distribution of intimate images,” including real images and images altered or generated by AI. Existing Title IX protections against harassment apply to conduct related to school-related programs or activities, regardless of whether the harassment occurs on campus. In other words, even if deepfakes spread outside of schools, Title IX requires schools to address off-campus conduct that creates a “hostile environment” within schools. Under the new rules, it is objectively and subjectively offensive and “severe or pervasive” to the extent that it limits or denies the recipient’s ability to “participate in or benefit from an educational program or activity.” The act is considered sexual harassment. The previous definition of sexual harassment was more restrictive, requiring the conduct to be “very serious, pervasive, and objectively offensive.” Determining whether an action created a hostile environment is fact-dependent, and Title IX provides for the following considerations:

“(i) the extent to which the conduct affected the complainant’s ability to access the recipient’s educational programs or activities; (ii) the type, frequency, and duration of the conduct; (iii) the ages of the parties, the recipient; (iv) the location of the act and the circumstances in which the act occurred; Other sexual harassment in educational programs or activities.”

In addition, updated Title IX regulations have changed investigation standards. Going forward, higher education institutions will lower the bar for conviction, using a “preponderance of the evidence” standard instead of the previous “clear and convincing evidence” standard. Universities may use higher standards in virtually similar circumstances. Elementary and secondary schools may still choose to resolve complaints informally “where available and appropriate.”

Four positive practices for educational institutions

• • • Update your policy to include deepfakes. Educational institutions should regularly review and update their policies and procedures as necessary to ensure their effectiveness in addressing image-based sexual harassment. These policies will address how instances of deepfakes created by students, teachers, and other staff inside and outside the school will be handled, based on how they are distributed (for example, by sharing and posting on external sites such as Instagram). and whether the policy is different. school forums, in person, etc.). Sexually explicit deepfakes can be created or distributed using online tools outside of schools or products procured by schools. School districts should evaluate procured products that may be used to create or distribute deepfakes and review contracts with third-party vendors for compatibility with the district’s own policies regarding incident response. Finally, policies should include defined terminology that is not too broad (such as banning all “AI”) or not inclusive (such as defining “deepfakes” as only static images). There is.
    • Make sure Title IX procedures are in place. Schools should be aware that Title IX legal obligations and student protections may apply to sexually explicit deepfake incidents. Title IX requires schools to conduct “prompt, fair and thorough investigations” into complaints of sexual harassment and take appropriate steps toward resolution. Title IX investigation procedures and policies must be updated in accordance with the rule’s new “preponderance of the evidence” standard. Legal obligations include keeping the complainant’s identity confidential, informing the complainant of available resources, interviewing the complainant in an inappropriate manner, and providing a formal hearing at the complainant’s request. This includes properly implementing the following. School leaders should incorporate the definition and handling of deepfake incidents into their Title IX policies and ensure they have procedures in place for staff to respond quickly and effectively.
    • Guidance and training for school staff. Schools must communicate Title IX policies to all students and faculty, including emphasizing that non-consensual, sexually explicit deepfakes may constitute Title IX sexual harassment; This may include: Educational institutions should consider staff training, including responsible use of technology, ethical use of AI (in and outside of school), how AI impacts others, and what impacts exist. Must be. School districts can share resources to educate educators on how to identify deepfake content (like the one from Department of Homeland Security, Massachusetts Institute of Technologyand Educational AI).
    • Educational leaders must ensure that their staff have appropriate training on the requirements under the Family Educational Rights and Privacy Act (Felpa) and how it relates to Title IX complaints. Title IX investigations typically involve the maintenance of personally identifiable information directly related to students, creating educational records that are subject to FERPA and triggering additional privacy protections. Deepfake incidents are happening Reported to law enforcementmay be done voluntarily by the victim. However, it is important to inform staff about when the school can legally release information to law enforcement, such as based on parental consent, a court order or subpoena, or a FERPA exception. Title IX discloses information to accused and alleged perpetrators of sexual harassment, except when disclosure is permitted by FERPA, required by law, or necessary to carry out the purposes of Title IX. are required to keep their identities confidential. For more information, see the FPF guide. Access to student records by law enforcement.
    • Instruction and training for students. Institutions must inform students and/or parents of Title IX policies and should consider educating students and parents about the ethical and legal use of AI. This guidance can take many forms, including: (1) the appropriate use of AI in and outside of school; (2) the inappropriate use of AI that may lead to disciplinary action; and (3) the disciplinary process. and (4) the negative impact that unethical or illegal uses of AI may have on victims, creators, and communities. Communicating to students the seriousness of AI misuse may help prevent further incidents.

Updated Title IX rules clarify that schools must evaluate whether sexually explicit deepfake incidents constitute sexual harassment issues. School leaders should note that in addition to Title IX, FERPA, state-specific laws, and privacy policies applicable to the sharing of student information may apply to incidents even if the information is generated by AI. You also need to understand that. A growing number of states are enacting non-educational laws to combat the creation and spread of sexually explicit deepfakes. For example, Washington state enacted House Bill of 1999 This year, similar to U.S. law, the criminal offense for creating or sharing sexually explicit, fabricated images of identifiable minors without their consent was expanded. virginiaand new york. Educational institutions must stay informed about applicable laws and regulations and be aware of the following legal situations: rapidly evolving To combat deepfake incidents.

What’s next?

The updated Title IX regulations will go into effect on August 1, 2024 and apply to complaints about alleged conduct that occurred after that date. As of the effective date, 26 states Lawsuits can be brought against the law and injunctions can be granted to prevent its enforcement. Pushback from states and other organizations Mainly stems This is because the updated rules expand sex discrimination to include “gender identity,” and it is not yet clear how these legal issues will affect the future of the updated rules. there is no.