Dr. Mary Anne Franks gets why people may be upset by a recent court ruling on possessing AI-generated child sexual abuse material.The decision, issued in late August by a federal appeals court panel, found that the First Amendment protects the possession of child sexual abuse material, or CSAM, in the home if it was created using artificial intelligence and does not depict an actual child."A lot of people have quite understandable intuitions about how wrong this sounds, or how it sounds like there's something radical going on here," said Franks, the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights at the George Washington University Law School.
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Instead, Franks said the panel adhered to Supreme Court decisions issued decades ago, before AI could render hyper-realistic images of fake people and fake images of real people."I do think it's a really straightforward reading of prior precedent, but I also understand why it's really upsetting to hear," Franks told Mashable. But that's not the end of the story. The judges made clear their discomfort with the conclusion by signaling to the Supreme Court that it might reconsider the precedent. Franks called the move "unusual." "[G]iven the significant advances in computer-generated image technology, particularly in the field of artificial intelligence, we would benefit from additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM if an appropriate case should arise," wrote Judges John Z. Lee and Joshua P. Kolar. What is the AI CSAM case really about? The three-judge panel, which is part of the U.S. Court of Appeals for the 7th Circuit, considered the facts of a federal case against Steven Anderegg, a software engineer who used generative AI tools to create "hyper-realistic" CSAM. Not only did he allegedly produce, distribute, and possess the material, but he also sent it to a minor via Instagram direct messages in Oct. 2023. Meta, Instagram's parent company, detected and reported the image and reported it to the National Center for Missing and Exploited Children's CyberTipline. A law enforcement investigation subsequently led to Anderegg's arrest. He was charged with multiple crimes, including knowingly possessing "at least one visual depiction that depicted a minor engaging in sexually explicit conduct and was obscene." Anderegg moved to dismiss the possession charge, arguing that conviction for possession of CSAM would violate his First Amendment rights as defined by past Supreme Court decisions. A district court agreed. Prosecutors appealed that decision, landing the case in the U.S. Court of Appeals for the 7th Circuit, which ultimately dropped the possession charge. Anderegg still faces charges for producing and distributing CSAM.
