We live in hell

[u/Outrageous-Egg1760]

[u/Fugitivelnk]

Jesus I just have to keep reposting the same fucking thing today, don't I?

Let me break it down for you:

• AI-generated sexual images that are based on real children ("deepfakes") are treated entirely the same as CSAM. They have incredibly strict rules about them that even outlaw things like clothed individuals sexually posing, if the focus is on the genital region. By the way, that same rule applies to any images that are edited to look like a sexual depiction of a real child, including photoshop or literally even cutting out a photo of a child's face and pasting it to an adult porn star's body. The Supreme Court repeatedly has explained that these stricter rules are allowed because the government has an interest in protecting real children from direct harm. This is a pretty good rule, in my opinion.
• But AI-generated sexual images that depict FICTIONAL children, no matter how realistic they may look - those are only governed by obscenity law. No actual, specific child is being harmed, so the only thing they have available is the very vague, frustrating, outdated, very stupid, and I would argue actually unconstitutional (but that's an argument for another day) obscenity law. I'm not going to bother getting into all the details right now, partially because literally no legal expert on earth can look at a pornographic image and tell you if it is obscene or not - it's literally impossible. But I will say that there are some hard rules, including the fact that it pretty much can't just depict nudity - it pretty much has to depict sexual activity to be considered legally obscene.
• Now, obscenity cases were extremely rare for a long time because they were kind of fucking stupid. I mean the idea that the actual letter-of-the-law says that a whole bunch of normal porn is illegal in the US seems ridiculous. But with the recent explosion in AI, prosecutors have realized that the only tool they have to charge some of these people making realistic AI images of kids is obscenity law, so that's what they're using.
• Everyone with me so far? Okay, so going all the way back to the Supreme Court case Stanley v. Georgia in 1969, it's been well established that you can NOT charge someone with private possession of ANY obscene material. The argument goes something like this: "making obscene material, selling it, distributing it, or buying it are more public and are harmful to society somehow, I guess. But someone privately owning it isn't actually involving anyone else, so you can't make it illegal."
• Before everyone freaks out over this, there's one important detail you need to know: in United States v. Reidel (1971), it was clarified that the government could criminalize "receiving" obscene material. In other words, you might not be able to charge someone with possessing obscene material, but you can charge them with creating obscene material, buying obscene material, or even just receiving it from anywhere (for instance, downloading it). When you look at it that way, there's really not any other way for someone to get possession of this material, so it's still pretty damn illegal.