I wrote my law school note about this. The fact that CSAM is illegal is a carve out to the First Amendment because, among a couple other reasons, it inherently harms the child. This ruling happened in the 80s, when AI wasn’t a thing. A photo or a video of a child was of an actual child. In 2002 or 2003, the case for AI generated CSAM was brought to the Supreme Court. That court ruled that it was not illegal because its creation didn’t harm an identifiable child. I believe Clarence Thomas, however, said this could be re-raised in the future as technology develops because it’s going to be difficult for law enforcement to distinguish between identifiable and AI-generated children. The argument that the training data sets are based on real children doesn’t seem to hold up well because you can’t reasonably scour data an LLM is trained on, and point to a specific child being abused.
This is not my opinion, it’s just the state of the law.
I don’t know why you’re coming at me for just saying what the state of the law is, especially when I said it’s not my personal opinion. I’m generally anti-AI and I think CSAM is bad. It’s possible that SCOTUS goes back on the 2002 decision and says possession of AI CSAM is a crime. It’s also possible they don’t. I know there are people who argue it’s better not to criminalize it because it cuts down on the incidence of actual children being victimized. Because at the end of the day, laws aren’t going to stop people who want to see CSAM from seeing it. So you might have to pick the lesser of the two evils and not criminalize AI porn. But there are a lot of reasons to criminalize it.
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u/StorageExciting8567 8d ago
I wrote my law school note about this. The fact that CSAM is illegal is a carve out to the First Amendment because, among a couple other reasons, it inherently harms the child. This ruling happened in the 80s, when AI wasn’t a thing. A photo or a video of a child was of an actual child. In 2002 or 2003, the case for AI generated CSAM was brought to the Supreme Court. That court ruled that it was not illegal because its creation didn’t harm an identifiable child. I believe Clarence Thomas, however, said this could be re-raised in the future as technology develops because it’s going to be difficult for law enforcement to distinguish between identifiable and AI-generated children. The argument that the training data sets are based on real children doesn’t seem to hold up well because you can’t reasonably scour data an LLM is trained on, and point to a specific child being abused.
This is not my opinion, it’s just the state of the law.