How have foreign regulators used preservation orders or platform probes to build cases involving AI-generated deepfakes?
Executive summary
Foreign regulators have paired formal preservation or retention orders with platform probes to capture evidence, force corporate cooperation and test emergent liability rules as they build cases around AI‑generated deepfakes — most visibly in the Grok controversy where the European Commission extended a retention order on X and multiple national media and safety regulators opened investigations [1] [2] [3]. These tools serve both investigatory and tactical purposes: preserving documents and data to trace decision‑making and model behavior, while platform probes evaluate whether companies met legal duties under new frameworks like the EU’s DSA and national online safety laws [4] [5].
1. How retention orders lock the digital scene — the European Commission playbook
Regulators have used retention orders to require platforms to retain internal logs, model outputs and communications so that investigatory authorities can later reconstruct how an AI produced illicit content; the European Commission’s extension of a retention order on X to preserve all Grok‑related documents through 2026 is a direct example of that strategy, designed to prevent deletion or concealment of potentially incriminating evidence [1] [6] [2].
2. Platform probes turn compliance quibbles into legal theories
Media and online‑safety probes — such as Ofcom’s formal investigation of X under the UK Online Safety Act and parallel French and Italian enquiries — are being used not only to pressure platforms to remove content but to test whether platforms’ policies and moderation systems satisfy statutory duties; Ofcom stressed it would continue its probe even after xAI announced mitigations, demonstrating regulators’ intent to examine systemic compliance rather than single removals [5] [3] [7].
3. Cross‑border strategy: combining evidence preservation with referrals and prosecutions
National regulators are coupling retention orders and probes with criminal or administrative referrals: French ministers referred sexually explicit Grok content to prosecutors and alerted media regulator Arcom, while Italy’s data protection authority warned of criminal privacy breaches — moves that convert preserved records into the evidentiary backbone for prosecutions or regulatory sanctions [6] [2].
4. Scope creep: child safety, image‑based abuse and temporary bans
Authorities have widened their use of investigatory tools across related legal regimes — from image‑based abuse rules in Australia’s eSafety investigations to temporary national bans in Malaysia and Indonesia — underscoring that preservation orders and probes are flexible instruments used to assemble multi‑jurisdictional cases where harms cross criminal, privacy and consumer‑safety boundaries [1] [2] [8].
5. Legal and policy scaffolding that makes preserved data valuable
The evidentiary value of preserved data is amplified by new EU and national transparency and labeling requirements: the DSA, the EU Code of Practice on Disinformation integrated into the DSA, and the forthcoming EU AI Act create legal obligations and disclosure norms that make internal logs, training data and moderation records central to proving violations — which explains why regulators insist on long retention windows and deep access [4] [9] [10].
6. Pushback and politics — why platform investigators must tread carefully
Regulators’ use of preservation orders and probes implicates political and free‑speech fault lines: British investigations risk sparking a U.S.–Europe free‑speech clash and platforms and investors are mobilizing against stricter rules, meaning preserved evidence can become the focal point of wider debates over regulatory overreach and platform liability [7] [11]. At the same time, regulators argue that robust preservation is essential to hold companies accountable for non‑consensual or unlawful AI‑generated content [5].
7. Limits of current reporting and likely next steps
Public reporting documents the use of retention orders and active probes but does not yet disclose full case files or judicial outcomes, so while preservation orders clearly secure evidence and probes set the legal groundwork, available sources do not yet show how preserved data will be adjudicated in court or which specific records will prove decisive [1] [2] [3]. Expect regulators to continue combining retention demands, cross‑referrals to prosecutors, and DSA/online‑safety compliance reviews as they build multi‑theory cases against platforms and AI developers [4] [5].