Yes, you read the heading correctly. Privately held AI-generated child sex abuse material (CSAM) is considered protected by the First Amendment. Can’t believe it? How did this happen? What does this now mean? Let’s get into it.
How did the courts come to this conclusion?
This determination was solidified during a federal appeals case. Steven Anderegg was charged with producing, possessing, and distributing AI-generated CSAM. Anderegg wanted the possession charge dismissed, and it was. He was granted the dismissal of the possession charge on the basis that the generated images were not of real children. Other preceding cases allow having obscene material and distinguish between virtual images and pictures of real people.
So any AI-generated CSAM is legal to possess now?
Not exactly. This ruling really is allowing possession of virtual CSAM. If the CSAM was an AI-altered version of an image of a real child, then that would still be illegal to posses.
My Take
Production and possession of CSAM, whether involving real children or not, is harmful to the community at large. While technically the children in the images may not be any specific child, the AI models are drawing from a multitude of images of real children. All those real children are ultimately harmed by being associated with CSAM generation, whether they are aware of it or not. Children’s images were probably not approved by guardians to be included in these models. I doubt parents would agree to their child’s images, whether individually or a part of an anonymous collective, being used to generate CSAM. The law needs to catch up to the realities of what is happening with AI generation.
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