Women and girls targeted by nonconsensual deepfake nudes have been seeking justice through a range of channels, all imperfect. They have requested takedowns from platforms, worked with elected officials on new legislation, and sued in court.
On the third front, lawsuits have to date largely focused on the people who created and shared AI nudes. One exception is the San Francisco City Attorney’s landmark case against 16 websites that enable people to create nonconsensual deepfake nudes.
Now, a 17-year-old from New Jersey has filed a lawsuit against an AI tool that she says was used by a classmate to “undress” her in 2023. The teenager’s suit alleges that Clothoff transformed an Instagram photo of her at the beach into a synthetic nude.
The complaint names AI/Robotics Venture Strategy 3 Ltd. as the British Virgin Islands-registered company behind ClothOff. It also names Alaiksandr Babichau and Dasha Babicheva of Minsk, Belarus as the people who developed, maintain, and oversee the “operations of ClothOff and its affiliated websites and services.” The siblings were linked to ClothOff as part of an investigation by The Guardian.
The biggest obstacle to bringing ClothOff to justice is likely to be the location of the defendants, which makes them difficult to serve, let alone hold accountable. But if the case proceeds, it could potentially bring justice to the website’s victims and unearth valuable information on the web of players that make up the nudifier economy. The complaint alleges that several nudifiers leverage ClothOff’s API, for instance, which would be a big revelation if confirmed in discovery.
ClothOff said in a statement to Fox News that it is “technically impossible” to use its service to create child sexual abuse material, or CSAM, and that they “block any attempt to generate videos or images involving minors or non-consenting individuals.“ They also claim to have “more serious” safety measures than most social networks, and compared the pushback they are receiving to the reaction Photoshop got when it first launched.
The co-counsels on the case are Shane Vogt, a Florida-based trial lawyer, and John Langford of the Yale Media Freedom & Information Access Clinic.
I spoke to Vogt, who it turns out is an Indicator member, on Friday Oct. 24 via Google Meet.
He said he’s confident that there are grounds to pursue ClothOff based on existing law, including on product liability. He told me the case is bigger than his client — who he called a “phenomenal person” — because it’s also about shutting down an ecosystem of AI tools that are victimizing thousands of people around the world.
What follows is an abridged and lightly edited transcript of our conversation.
How did you first come across the topic of synthetic non-consensual intimate imagery? Was this your first exposure to it or have you had other cases in this space?
Representing this particular client was the first time I'd come across this material and even knew these apps existed. And then obviously, I saw the stories and everything about it happening in a number of places.
I started doing my research into potential claims and saw that there were some pretty viable claims under already existing law. I found it interesting that a lot of the initial responses that you saw from state law enforcement and others was that the current laws don't cover it. My research showed that it did. Once I really dug in and determined that there were viable claims under existing statutes, particularly federal laws, I went ahead and found a way to start helping the client out.
The first lawsuit that we filed involved actual users of the sites. And the thought process on that was that initially the client just wanted to find out, you know, what happened and what images were used. And then unfortunately you get into a situation – which as you can see from the filings in the prior case, I'm somewhat limited in talking about because of confidentiality protections – where because we are asserting claims including under federal child pornography statutes, people invoke their Fifth Amendment rights. And so at that point it becomes extremely difficult to get information out of anybody.
This case is in Jersey, you’re in Florida. I saw there's a pro bono clinic involved too. Could you give me a high-level sense of the legal team assembled?
Yeah. So, as I was working on the initial case that I'm involved in in New Jersey against the classmate, the Yale Media Freedom and Information Access Clinic contacted me about the possibility of getting involved in a case together. John Langford up there is amazing, as well as their staff attorneys, and the students involved in the clinic have been just phenomenal.
It's actually pretty amazing when you stop and think about us collaborating on this because broadly speaking, I more often am on the other side of groups like that. I handle plaintiff and defense work in speech and privacy cases, but a lot of times I'm adverse to media companies in some of these bigger cases. [Editor’s note: Vogt represented Hulk Hogan in Bollea v Gawker.]
In fact, I have a case where the other side includes one of the lawyers who's involved with this Clinic. And you know, we made sure that that was fine with everyone before we started, and it was. But to me, that's just an interesting aspect … that this is such a significant problem that the likes of us have joined up together to try and fight it.
Because to me the most troubling aspect of this is that the victims, in large part, are kind of being left to handle it themselves. It doesn't seem like law enforcement is taking an aggressive approach on this. I've seen a few, in doing my research, criminal prosecutions against people, but it tended to be, from what I could tell, cases involving very young child pornography victims.
And it's a hard situation for law enforcement because they're dealing in those scenarios with kids on both sides. They have additional protections under the law. And it's hard for them to go after the people who make the apps. So I understand the difficulties, but it troubles me that 15, 16, and 17-year-old girls are having to put themselves out there by filing lawsuits and trying to get some sort of justice.
One more thing about the coalition of folks taking the legal path here. Have you been engaging at all with the SF city attorney’s office?
I spoke with them a couple of times and right when they filed their lawsuit and they have been great. They're very helpful when they can be.
I think they're going to run into – well, they have already run into – the same problem we'll deal with, which is trying to track these people down and find them. So we may get to a point where we have to try some sort of alternative service of process, if the court will let us, to try and get these people served once we can track them down.
There has been … at least one whistleblower, it looks like, that's talked to someone. Maybe if we can track down those kinds of people, maybe one of them will be in the US. So that, you know, that would make our jobs eminently more reasonable if it relates at least to the company and being able to get someone served in the United States. So, that's our hope.
Well, here's hoping. So, jumping into the complaint, I was interested in a couple of things that I read and I was going to ask you a little bit about your thinking.
Early on, and then throughout, there is reference to the fact that ClothOff adds no stamp or no way to distinguish whether these images are real or fabricated. And I know from reading some legal scholarship that this could be a significant distinction.
Is this a distinction that y'all are trying to make because it enters into defamation territory? What makes it legally significant to flag that this image is not just harmful in and of itself but also doesn’t explicitly indicate it is fake?
At the end of the day, it could be legally significant. I don't think it changes the fact that once they create this, even if they put a stamp on it, that it qualifies as child pornography when you're dealing with someone who's under the age of 18. It could potentially be relevant to things like damages.
Putting aside for a moment the fact that the victim has to deal with there being a nude image of them, even if it has a stamp. Once these things get circulated, which is virtually impossible to track, if there's no indication on it, some sort of stamp, that it's AI, then everybody who receives that picture is left with the impression that this person stood there and posed nude for a picture in a public place to be taken by another person, as opposed to it being something they didn’t create.
And down the line, as searches for people get more and more sophisticated, when they're looking for jobs, things like this could show up. So this could be significant for those types of reasons.
The complaint speaks of the “sole purpose” of the tool. It’s certainly one thing I have focused on as a tech worker and analyst where there’s been this facile “you can’t regulate this technology now, who knows where it’s going to go” and “you’re hampering creativity” and blah, blah, blah. But these tools really are very explicit about what they’re for.
From a moral and policy perspective, that seems like a strong reason to go after them. It sounds like there's a legal basis for it, too? And the flip side being that if these players become smarter about camouflaging as AI porn broadly but you can find your way to nonconsensual nudification, then that might reduce future legal arguments?
Yeah, I mean it's clear from everything that they put out and the advertising and their features that this is intended and designed to undress other people. My thought on that has always been very simplistic, which is that if you want a nude picture of yourself you can take a nude picture of yourself.
Yes.
You don't need to upload a picture of yourself to some unknown website or application and put it out there in the ether. Most people would never do that.
Same for a consensual partner.
Right. So, it just never made sense to me from a common sense perspective, let alone a legal perspective, that there be a viable argument that, “Well, no, this has a legitimate purpose because people can upload pictures of themselves or with someone else’s consent.” There's no way.
You have included Telegram as a nominal defendant and I obviously very much understand the role of Telegram in the nudifying economy. I’m also cognizant that there are lots of other platforms that touch this space, including ClothOff. Best we can tell from open tools, Cloudflare provides some services to Clothoff and you can use Google on the site for single-sign on.
There’s a broad infrastructure of respectable American companies that have yet to say that “these tools of abuse are verboten, we're just not going to engage with them.”
So I'm curious, from your perspective, what led to the choice of Telegram specifically and how did you think about whether to include some US companies where ClothOff has had a presence or has been a client?
Before filing suit, we reached out to a number of different companies to see if they would take certain steps so that we didn't need to add them as a nominal defendant. The purpose of that simply being to ensure that the relief that we get against ClothOff can be enforced. Because there are cases out there that say that “Look you can't enforce this injunction against this other company and force them to deplatform and take them down because they're not a party.”
But we did have some success with a number of companies getting them to take steps. Telegram was one that initially I don't think we got a response from and so they were the one that was left. Although I understand that now they may have taken steps to do some of the things that we were asking to do.
But you know how that is. That's like whack-a-mole. They're just gonna pop up somewhere under something else.
Towards the end of the complaint there's an argument around lack of age verification. Can you tell me a little bit about whether this increases the burden on the platform and why? I would have assumed that CSAM generation is CSAM generation regardless of whether it’s age-gated or not, but I’m not a lawyer.
The age verification issue has a lot to do with the fact that we have a claim here in terms of this being a defective product. And if there are not steps taken to ensure that minors are not using the service, that makes it an inherently defective product.
And those are fairly, you know, easy steps to take. And I think you noticed in the complaint that [ClothOff] posted a whole statement about how they think age verification is a scam.
Which is interesting because ironically I did an interview on Fox News earlier this week and they reached out for comment and they got that statement saying, "Oh, just use age verification." I'm like, "Well, not according to your website."
Yep. You know, I was surprised they gave Fox that comment, it gave me a sense that they feel like they're not going to get caught.
100%. 100%. When I saw it, I was like, "Wow, that's pretty bold,” you know, to do that. It's almost flaunting the fact that they think that they can never get caught.
I want to get to the claim about the defective product. So in terms of the actual claims, there's obviously child pornography, there's violation of privacy, there’s emotional distress, but I wanted to spend the few minutes we've got left on the product liability aspect because I think it's super interesting.
Nudifiers don’t always signpost in their Terms of Service that you are only supposed to use the tool consensually and on adults, but several do. Is this the first case to pursue AI nudifiers on these grounds?
As far as I know, it is. And again, there aren't many of these cases. And I think it’s because if you're not a governmental body like the city of San Francisco you have to do these things on your own and they can be expensive and time consuming.
It’s why the Yale Media Freedom and Information Access Clinic joining up with me was such a benefit. Because otherwise you’re laying out a lot of time and money on your own as a lawyer that you're likely not going to get back. I mean, it's, you know, you're still a business and you still have bills you have to pay. And so, it's hard to outlay that amount of time, but I think this is such an important issue that I was willing to do it regardless.
But I think that explains why you don't see more of these lawsuits coming, particularly against the people making these sites. Legally, it's heavy lifting. They're difficult cases to pursue. They’re factually involved, legally involved. And it’s groundbreaking because, you know, these things are so new. These are untested waters and it's expensive and so you're not going to see a lot of private individuals with the resources and the wherewithal to be able to do these types of things.
And so, from my understanding, it's the first one. And we're hoping it's a success.
It's why it's so important to get them served because the minute we can bring them in then we can go to work on all the legal stuff and that's the real key because then it provides a framework for everybody else to do this to hopefully get rid of these things because they shouldn't exist. They shouldn't be out there. They shouldn't be operating.
I 100% agree.
You know, we spoke about the legal case, and the infrastructure, etc., because that's what we do at Indicator and what you focus on but I just want to close on the thing that matters the most which is the client.
I just wanted to understand, to the extent that you and they are willing to say: What do they want out of this? How are they doing? What's their mindset as they try to take this case on?
I think at the end of the day her goal is what I just said, which is to put these guys out of business. And to try and stop this from happening to anyone else.
It's a monumental task for a 17-year-old girl. And our client is just a phenomenal person. Incredibly strong, incredibly brave, putting herself out there to do something like this not just for herself, but for the benefit of everyone else that this has already happened to and to whom it will happen to.
Because until these things are shut down, you know the data more than I do, hundreds of thousands of these things are being generated probably every day between all these sites — and every one of those images is a victim. That’s the goal: for at least something good to come out of this and putting a stop to this.
