Law enforcement agencies nationwide are proactively intensifying efforts to combat the increasing production of child sexual abuse images generated by artificial intelligence. This includes everything from manipulated photos of real children to graphic images of computer-generated kids.
The Department of Justice (DOJ) is at the forefront, actively pursuing offenders who exploit AI tools. States are also ensuring that those creating 'deepfakes' and other harmful images of children can be prosecuted under their laws.
The DOJ also states that current federal laws clearly cover this type of content.
Notably, the DOJ has recently initiated the first federal case involving solely AI-generated imagery, a significant milestone in the legal battle against AI-generated child sexual abuse material.
The National Center for Missing & Exploited Children reports that lawmakers are enacting laws to allow local prosecutors to charge offenses under state laws involving AI-created "deepfakes" and other sexually explicit images of children.
Key AI-Child Porn Highlights
- Perpetrators can legally download materials to create and produce unlimited images offline without risk of detection.
- Several tools are available for enhancing and editing generated images to meet the creator's exact specifications.
- Most AI-generated CSAM now appears realistic enough to be mistaken for real CSAM.
- The most convincing AI-generated CSAM looks visually identical to real CSAM.
- There is now sufficient evidence indicating that AI CSAM has raised the risk of re-victimizing known victims of child sexual abuse.
- Numerous instances of AI-generated images depicting famous children have been found.
- AI CSAM provides an additional way for offenders to monetize child sexual abuse.
- Federal law explicitly states that AI-generated images of CSAM are considered child pornography under legal definitions.
- Research indicates that most individuals who possess and share CSAM also commit direct sexual offenses against minors.
- The abuse is frequently carried out by someone the child trusts, with offenders employing grooming methods to make sexual contact seem normal and to promote secrecy.
Is AI-Generated Child Pornography Illegal?
Artificial intelligence has advanced to the point where it can create highly realistic images, even depicting illegal activities. A prevalent question now is whether it is illegal to view or produce AI-generated child sexual abuse material (CSAM) if no real children are involved.
AI technology capable of creating photos and videos has become increasingly popular. People use AI-generated images for many purposes, including illegal ones such as federal child pornography. Specifically, AI-generated images depicting child sexual abuse are classified as child pornography, and viewing or sharing them is a federal offense.
AI programs create sexual images and videos of fictional characters, and sometimes of real people in sexual acts, known as 'deepfakes.' While pornographic images of fictional adults are generally protected by the First Amendment, deepfakes and sexual depictions of minors are usually illegal.
California Bans AI-Enabled Child Sexual Abuse
In California, Governor Gavin Newsom approved AB 1831, making it a crime to create, distribute, or possess AI-generated child sexual abuse material (CSAM).
This law specifically targets the rapidly growing risks posed by artificial intelligence (AI) technologies, particularly the creation of disturbing and harmful content that mimics real children. Notably, Bill 1831 is one of three measures intended to safeguard Californians from the advancement of AI and encourage responsible AI use.
For example, AB 2876 includes AI literacy in the core curriculum for all K-12 students in California. Previously, the Governor signed AB 2655, a pioneering policy that mandates online platforms to limit the dissemination of election-related deceptive deepfakes designed to mislead or disenfranchise voters through false content.
California Penal Code 311.2 makes it a crime to knowingly distribute child pornography.
What is Child Sexual Abuse Material?
Child sexual abuse (CSAM) material includes any visual depiction of sexually explicit conduct involving a minor, though it is commonly referred to as "child pornography." Law enforcement and prosecutors are increasingly using impactful terms that highlight the abusive nature of such content, such as:
- Child sexual abuse material or
- Child sexual exploitation and abuse imagery (CSEAI).
In the United States, there is broad bipartisan support for efforts to combat online CSAM. As mentioned, federal law considers knowing possession of CSAM a crime. Importantly, federal law treats AI-generated CSAM the same as actual CSAM.
What Are the Restrictions Imposed by Federal Law?
Federal laws explicitly ban any visual representation of CSAM that looks identical to a real minor involved in sexual activity, including:
- Drawings
- Cartoons
- Sculptures
- Paintings
- Computer-generated images
This involves showing a child engaging in sexual conduct if it is obscene or lacking serious artistic value. Federal law does not require that the depicted minor actually exist in real life. Therefore, individuals and organizations can face criminal charges even if the CSAM they host does not depict an actual child.
When state child porn offenses cross state lines, they become federal crimes. This covers crimes committed via the internet, which nearly always involve interstate communication. AI-generated child pornography can be prosecuted under both state and federal laws.
Federal Definition of Child Pornography
Federal law bans the production, 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 rooted in abuse, rape, molestation, or exploitation. Creating CSAM leaves 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 a viewer seeing any part of the genitals or pubic area of a person or animal during the depiction of such conduct.
Understanding the Expanded Definition of Child Porn
Notably, in cases involving modern technology, the definition extends beyond traditional media. Federal law explicitly encompasses the following within its scope:
- Computer-Generated Depictions: This refers to digitally created visuals that depict a child engaging in sexually explicit conduct, meaning they can still qualify as CSAM even if no real child was involved in their production.
- Indistinguishable Depictions: An artificially created image that looks exactly like a real depiction of a minor involved in sexually explicit conduct is considered child pornography.
- Computer-Modified Depictions: This involves changing or editing an image to suggest that an identifiable child is participating in sexually explicit behavior. For example, if you place a real child's head onto an AI-generated sexual scene, it still constitutes child pornography, even if the child was not physically involved.
By framing the law this way, Congress clarifies that AI-generated content is clearly covered. The language assumes that CSAM is inherently harmful, regardless of whether minors were explicitly harmed during its creation.
What Are the Penalties If You Are Convicted?
Federal law imposes harsh penalties for possessing or distributing child pornography, whether it involves actual children or computer-generated images. These offenses are primarily governed by 18 U.S. Code § § 2252 and 2252A, which set strict sentencing guidelines.
- Possession: Anyone possessing child pornography-including AI-generated content, may face up to 10 years in prison. If the image shows a prepubescent minor or a minor under 12, the sentence can be longer.
- Distribution or Production: A conviction for producing, distributing, or receiving child pornography carries penalties ranging from at least 5 years to as much as 20 years in federal prison. Repeat offenders or individuals with previous convictions for similar crimes face stricter minimum sentences, with mandatory minimums increasing to 15 years and maximum penalties reaching 40 years.
Protecting Yourself from Federal Child Porn Charges
The stakes are extremely high for individuals accused of federal crimes related to AI-generated CSAM. Federal prosecutors and courts regard these offenses as very serious, imposing penalties that reflect the crime's severity. Legally, there is no distinction between traditional images and AI-generated images regarding the harm they cause or their societal impact.
This means that the absence of minors involved in creating the material will not constitute a valid defense against the charges. If you face a federal crime related to child pornography, consulting an experienced federal criminal defense lawyer is a crucial initial step in handling the case.
Despite the seriousness of the crime and potential penalties, a skilled attorney can deploy various defense strategies for you. Some of the most common defenses include:
- Lack of Knowledge: A conviction under federal child pornography laws still requires prosecutors to prove that you knowingly produced, distributed, received, possessed, or viewed the material in question. If you can demonstrate that you were unaware the material was child pornography—such as if your viewing was accidental or incidental, or if you did not realize the depictions involved minors—you could effectively use these as valid defenses.
- No Foreign or Interstate Commerce: Under federal law, child pornography—whether AI-generated or traditional—must involve federal infrastructure like mail or the Internet or cross state or national borders to be prosecutable. If the activity occurred solely within one state and does not meet these criteria, your lawyer might argue it falls under state jurisdiction, which could result in lighter penalties.
For more information, contact Cron, Israels & Stark, our federal criminal defense lawyers based in Los Angeles, California.
