00:03Artificial intelligence is forcing America's courts to confront unprecedented questions.
00:09What happens when technology can create an image that looks real, but no person was involved?
00:15And when those images depict child sexual abuse, are they protected by the First Amendment?
00:2142-year-old Stephen Anderegg was arrested in 2024.
00:25Prosecutors say he used AI to create thousands of photorealistic abuse images.
00:31Straight Arrow spoke with experts to understand the court ruling, limits to the First Amendment,
00:37and how emerging technology now complicates decades-old court decisions.
00:42On August 25th, the 7th U.S. Circuit Court of Appeals in Chicago ruled that the government
00:48could not prosecute Wisconsin man Stephen Anderegg in a case involving entirely AI-generated
00:55images depicting fictional minors.
00:58But the ruling is much narrower than many headlines suggest.
01:02The court did not say that all AI-generated sexual material is legal.
01:08Instead, it addressed a specific constitutional question involving private possession of the
01:14images inside a private home.
01:16The Seventh Circuit affirmed the district court's ruling, where the district court had held that
01:21the First Amendment protects the purely private possession of obscene material inside the home,
01:28even when that material is a depiction of imaginary children.
01:33Rihanna Pfefferkorn is a policy fellow at Stanford's Institute for Human-Centered Artificial Intelligence,
01:39where she studies AI, law, and child safety issues.
01:44Anderegg was charged with producing, distributing, and possessing images depicting child sexual abuse,
01:51images all generated by AI.
01:54Federal prosecutors alleged that Anderegg used Stable Diffusion,
01:59a generative AI program to create the images.
02:03The government also alleged that some of the material was transmitted to a minor.
02:08Anderegg faced several federal charges involving AI-generated images,
02:13but this appeal focused on the possession charge solely.
02:16The Seventh Circuit did not rule that creating or distributing the material is protected by the First Amendment.
02:22Instead, the judges considered a narrower question.
02:25Can the government prosecute someone for possessing entirely virtual material inside their home?
02:31The big distinction here, I think, is that even when it comes to realistic-looking depictions of virtual children,
02:40the Supreme Court has repeatedly said the distinction in terms of whether something is constitutionally protected or not
02:45is was there a real child involved in the production of that material or not?
02:50And since there is no real child involved here, ultimately, it becomes much harder to try and argue against why
02:57that speech ought to be protected.
02:59And to answer that, the court had to look back decades, long before the development of artificial intelligence.
03:05In 1969, the Supreme Court ruled in Stanley v. Georgia that the government generally could not criminalize the private possession
03:13of obscene material inside someone's home.
03:16But in 1990, the Supreme Court created an important exception.
03:21In Osborne v. Ohio, the court ruled that the government could prohibit possession of child sexual abuse material involving actual
03:29children.
03:30The justices said the government has a compelling interest in protecting children from exploitation,
03:35then came a critical case in 2002.
03:38In Ashcroft v. Free Speech Coalition, the Supreme Court rejected efforts to broadly treat fully virtual depictions the same as
03:47material involving actual victims.
03:49That distinction became central to the Anderan case.
03:53The court didn't even seem happy about having to say,
03:56Hey, we have binding Supreme Court precedent on this question and we don't like this material either,
04:01but we have to follow the Supreme Court on this issue.
04:04Are the judges themselves, you know, suspect here?
04:07And the answer is no.
04:08What makes this case so challenging is that today's technology looks dramatically different
04:14from the technology that existed when those Supreme Court cases were decided.
04:18Kate Ruan directs the Free Expression Project at the Center for Democracy and Technology
04:23and focuses on First Amendment issues involving emerging technology.
04:28Generative AI has changed the landscape by just making it a lot easier to create child sexual abuse material that
04:35doesn't depict a real child.
04:37The advances in generative AI have done is it makes it harder for law enforcement
04:42who are receiving reports of child sexual abuse material to identify children who are in harm and in need of
04:50immediate assistance.
04:51In Anderegg's case, the government argued that even entirely virtual material can create real-world harm.
04:59Among those concerns are whether it could be used for grooming, whether it normalizes abusive behavior,
05:05and whether increasingly realistic AI images make investigations more difficult.
05:10So I come to this work as somebody who has lived sexual abuse, has lived child sexual abuse,
05:16and also who works very closely with survivors.
05:21Lennon Torres works with the HEED Initiative, a nonprofit that's focused on protecting children and survivors from online exploitation.
05:29Torres says that's why the human cost of this debate is never far from mine.
05:34What it really does is normalize this issue.
05:37And so when you have deepfake imagery, it basically just rocket launches the amount of volume of things that are
05:44available to use to continue harming kids.
05:47So what does the ruling actually do?
05:50It protects Anderegg from prosecution under the specific possession charge challenged in this case.
05:56But it does not make producing or distributing the material broadly legal.
06:01And it does not apply to material depicting an actual child.
06:05The law is based on decades-old Supreme Court precedent, but generative AI has changed the technology landscape dramatically.
06:13That creates a gap between existing law and what AI can produce.
06:17The question now is whether the Supreme Court should revisit the rules.
06:21This type of technology essentially puts every child at risk.
06:26When we think about posting our kids on social media, or we think about our kids out, you know, at
06:32the park,
06:32this technology has made it especially available for perpetrators to take just a normal, non-exploitative image of a young
06:43person
06:43and essentially use that to make really egregious and terrible content that they not only will consume, but often share.
06:53Torres says it's important to bring the law in line with today's technology.
06:58To put it bluntly, what people don't get right now when we're talking about this issue,
07:03what perspective is missing are the actual survivors of the imagery that these models were trained off of.
07:11And the reason that technology is able to do that is because it has seen and used the imagery of
07:19real children
07:20truly and horribly being raped in real life.
07:25And I think that we miss that part of the story and we forget that there are real people behind
07:31behind this.
07:32This case shows that while artificial intelligence is moving fast, the law is not moving at the same pace.
07:38Whether the law can keep up may be one of the defining legal battles of the AI era.
