As AI technology becomes widespread, tools capable of creating photos and videos are gaining popularity. People use AI-generated images for many reasons, including pornography. These AI programs sometimes produce sexual images and videos of fictional characters, while at other times they depict real individuals engaged in sexual acts — known as "deepfakes."
Policymakers are actively debating laws related to AI-generated pornography. Although pornographic images of fictional adults are protected as free speech under the First Amendment, deepfakes and sexual images involving children are illegal in certain states and are being criminalized in others.
AI-generated child pornography, including deepfakes and images claiming to depict children, is illegal under federal law. It's important to remember that crimes become federal when they cross state boundaries, which includes internet-related offenses involving interstate communication. Therefore, AI-generated child porn can be prosecuted under both state and federal laws.
Law enforcement agencies nationwide are intensifying efforts to combat the surge of child sexual abuse images produced using artificial intelligence. This proactive stance is a reassurance to the public, as it encompasses manipulated photos of real children as well as graphic images of computer-generated children.
The Department of Justice (DOJ) is actively pursuing offenders exploiting AI, while states are working to ensure that creating 'deepfakes' and other harmful images of minors can be prosecuted under existing laws.
Key Takeaways
- Artificial intelligence has advanced to a point where it can produce highly realistic images, even depicting illegal activities.
- Many ask whether it is illegal to view or create AI-generated child sexual abuse material (CSAM) if no real children are involved.
- The increasing use of AI technology in creating photos and videos has led to a surge in illegal content, including child pornography. Specifically, AI-generated images depicting child sexual abuse are classified as child porn, and viewing or sharing them is a federal crime.
- AI programs are used to create sexual images and videos of fictional characters, and sometimes they depict real people in sexual acts.
- While pornographic images of fictional adults are protected as free speech under the First Amendment, deepfakes and sexual images involving minors are generally illegal.
- Perpetrators can legally download everything they need to generate these images and produce as many images as they want.
- Various tools exist for improving and editing generated images until they look exactly like the perpetrator wants.
- There is reasonable evidence that AI CSAM has increased the potential for the re-victimization of known child sexual abuse victims.
- Under federal law, AI-generated images of child sexual abuse material (CSAM) are unequivocally classified as child pornography.
- Child sexual abuse (CSAM) material is any visual depiction of sexually explicit conduct involving a minor, but the term "child pornography" is typically used.
California Makes AI-Enabled Child Sex Abuse a Crime
In California, Governor Gavin Newsom enacted AB 1831, outlawing the creation, distribution, and possession of AI-generated child sexual abuse material (CSAM).
This legislation targets the growing dangers of AI technologies, which can produce harmful content that appears to be real children. Importantly, AB 1831 is among three bills designed to safeguard Californians from the risks of AI and encourage responsible AI use.
For example, AB 2876 incorporates AI literacy into the main curriculum for all K-12 students in California. Previously, the Governor signed AB 2655, a pioneering law that mandates online platforms to limit the dissemination of election-related deepfakes designed to deceive or disenfranchise voters using false information.
What is Prohibited Under Federal Law?
Federal laws explicitly prohibit any visual representation of CSAM that appears indistinguishable from an actual minor engaging in sexually activity, including computer-generated images, drawings, cartoons, sculptures, or paintings.
This covers situations where a child is shown in sexual conduct if it is obscene or lacks significant artistic value. Importantly, the law does not require that the minor depicted actually exists in real life.
Therefore, individuals and organizations can face criminal charges even if the material they host does not depict a real child. Child porn crimes that involve crossing state borders become federal offenses, especially those conducted over the internet, which typically involves interstate communication. AI-generated child pornography can be prosecuted under both state and federal laws.
Definition of Child Porn Under Federal Law
Federal law bans the creation, advertisement, transportation, distribution, receipt, sale, access with intent to view, and possession of child sexual abuse material (CSAM). Every sexually explicit image or video of a child is based on abuse, rape, molestation, or exploitation. Producing CSAM results in a permanent record of the child's victimization.
Under Title 18 U.S. Code 2256(8), the term "child pornography" is defined as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-
(A) The production of such a visual depiction involves the use of a minor engaging in sexually explicit conduct.
(B) Such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) Such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."
Sexually explicit conduct refers to situations where a viewer can see any part of the genitals or pubic area of any person or animal during the depiction of such conduct.
Child Porn Definition Expanded
Notably, in cases involving modern technology, the definition extends beyond traditional media. Federal law clearly covers the following areas:
- Computer-Generated Depictions: This refers to digitally created visuals depicting a child engaging in sexually explicit conduct. Even if no real child was involved in their creation, they can still qualify as CSAM.
- Indistinguishable Depictions: A computer-generated image or picture that appears exactly like a real visual of a minor engaged in sexually explicit conduct is classified as child pornography.
- Computer-Modified Depictions: This refers to images that have been altered to appear as if an identifiable child is involved in sexually explicit activities. This includes situations where an actual child's head is superimposed onto an AI-generated sexual scene, which still constitutes child pornography, even if the child was not physically present.
By presenting the law in this manner, Congress clarifies any uncertainty surrounding AI-generated content. The law assumes that CSAM is inherently harmful, even if no minors were explicitly harmed during its creation.
What Are the Penalties for AI-Generated Child Porn?
The law imposes severe penalties for the creation, distribution, and possession of AI-generated child sexual abuse material. This underscores the gravity of the issue and the deterrence of the law.
Federal law imposes strict penalties for possessing or distributing child pornography, whether involving real children or computer-generated images. These offenses are primarily governed by 18 U.S. Code 2252 and 18 U.S. Code 2252A, which specify stringent sentencing guidelines, including:
- Possession. Anyone found with child pornography— including AI-generated materials— can face up to 10 years in prison. If the image shows a prepubescent minor or a child under 12, the sentence can be longer.
- Distribution or Production. Convictions for producing, distributing, or receiving child pornography carry penalties ranging from a mandatory minimum of 5 years to up to 20 years in federal prison. Repeat offenders or those with previous convictions for similar crimes face even stricter minimum sentences, with mandatory terms escalating to at least 15 years and up to 40 years in prison.
Why You Need a Federal Defense Lawyer
The stakes are extremely high for individuals charged with federal crimes involving AI-generated CSAM. Federal prosecutors and courts treat these offenses with utmost seriousness, imposing penalties that reflect the severity of the crime. The law does not distinguish between traditional and AI-generated images in terms of the harm caused or societal impact.
Despite the seriousness of the crime and the risk of harsh penalties, a skilled federal criminal defense attorney can still utilize multiple defense strategies for your case.
Under federal child pornography laws, prosecutors must prove that you knowingly produced, distributed, received, possessed, or viewed the material. Suppose you can demonstrate that you were unaware the material was child pornography, that viewing it was accidental or incidental, or that you did not realize the depictions involved minors. In that case, these can serve as strong defenses.
For child pornography of any kind (AI or traditional) to be prosecuted federally, it must involve federal channels like the mail or the Internet, or cross state or national borders.
If your activity was solely within one state and did not meet these criteria, your lawyer might argue that it's under state jurisdiction instead, which could result in lighter penalties. For more information, contact the Hedding Law Firm in Los Angeles, CA.
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