this post was submitted on 21 May 2024
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These cases are interesting tests of our first amendment rights. "Real" CP requires abuse of a minor, and I think we can all agree that it should be illegal. But it gets pretty messy when we are talking about depictions of abuse.
Currently, we do not outlaw written depictions nor drawings of child sexual abuse. In my opinion, we do not ban these things partly because they are obvious fictions. But also I think we recognize that we should not be in the business of criminalizing expression, regardless of how disgusting it is. I can imagine instances where these fictional depictions could be used in a way that is criminal, such as using them to blackmail someone. In the absence of any harm, it is difficult to justify criminalizing fictional depictions of child abuse.
So how are AI-generated depictions different? First, they are not obvious fictions. Is this enough to cross the line into criminal behavior? I think reasonable minds could disagree. Second, is there harm from these depictions? If the AI models were trained on abusive content, then yes there is harm directly tied to the generation of these images. But what if the training data did not include any abusive content, and these images really are purely depictions of imagination? Then the discussion of harms becomes pretty vague and indirect. Will these images embolden child abusers or increase demand for "real" images of abuse. Is that enough to criminalize them, or should they be treated like other fictional depictions?
We will have some very interesting case law around AI generated content and the limits of free speech. One could argue that the AI is not a person and has no right of free speech, so any content generated by AI could be regulated in any manner. But this argument fails to acknowledge that AI is a tool for expression, similar to pen and paper.
A big problem with AI content is that we have become accustomed to viewing photos and videos as trusted forms of truth. As we re-learn what forms of media can be trusted as "real," we will likely change our opinions about fringe forms of AI-generated content and where it is appropriate to regulate them.
Cartoon CSAM is illegal in the United States
https://www.thefederalcriminalattorneys.com/possession-of-lolicon
https://en.wikipedia.org/wiki/PROTECT_Act_of_2003
for some reason the US seems to hold a weird position on this one. I don't really understand it.
It's written to be illegal, but if you look at prosecution cases, i think there have been only a handful of charged cases. The prominent ones which also include relevant previous offenses, or worse.
It's also interesting when you consider that there are almost definitely large image boards hosted in the US that host what could be constituted as "cartoon CSAM" notably e621, i'd have to verify their hosting location, but i believe they're in the US. And so far i don't believe they've ever had any issues with it. And i'm sure there are other good examples as well.
I suppose you could argue they're exempt on the publisher rules. But these sites don't moderate against these images, generally. And i feel like this would be the rare exception where it wouldnt be applicable.
The law is fucking weird dude. There is a massive disconnect between what we should be seeing, and what we are seeing. I assume because the authorities who moderate this shit almost exclusively go after real CSAM, on account of it actually being a literal offense, as opposed to drawn CSAM, being a proxy offense.
It seems to me to be a lesser charge. A net that catches a larger population and they can then go fishing for bigger fish to make the prosecutor look good. Or as I've heard from others, it is used to simplify prosecution. PedoAnon can't argue "it's a deepfake, not a real kid" to the SWAT team.
ah that could be a possibility as well. Just ensuring reasonable flexibility in prosecution so you can be sure of what you get.