Appeal Asks: Is Child Porn Created by AI Legal?

Federal prosecutors are appealing a judge's decision that private possession of AI-generated child sexual abuse material (CSAM) is protected under the Constitution, in a case that could have huge implications for the legal treatment of such content, which is increasing online. Steven Anderegg, 42, of Wisconsin faced "potentially the first federal charge of creating child sexual abuse material applied to images produced entirely through AI" last year, per the Washington Post. But in February, US District Judge James Peterson threw out a CSAM possession charge, ruling that the First Amendment protects the possession of "virtual child pornography" in one's own home, per NBC News.

Prosecutors say Anderegg used text-to-image generative artificial intelligence to create more than 13,000 CSAM images depicting non-real children and sent some of them to a 15-year-old boy on Instagram. Anderegg argued he had the right to possess and produce obscene material in his own home under a 1969 Supreme Court ruling, Stanley v. Georgia, per the Independent. That ruling determined the state could not criminalize private possession of obscene material in one's own home. As NBC reports, it "has not traditionally been applied to cases involving CSAM that includes real children, which have typically been tried under a different set of laws about the sexual exploitation of minors."

Peterson agreed with Anderegg's argument, tossing the charge for possession, while allowing three other charges against Anderegg to proceed, per NBC. Federal prosecutors appealed the ruling on March 3. The Justice Department has argued AI-generated CSAM or "obscene virtual child pornography" is banned under the 2003 Protect Act, which criminalizes "obscene visual representations of the sexual abuse of children." How an appeals court decides the case will have big implications for the prosecuting of CSAM crimes as experts warn safeguards to prevent the misuse of AI can be dismantled by open source users on their own computers, per the Post. (More child sexual abuse material stories.)