The age of generative AI has sparked a new wave of concern among parents about posting images of their kids, due to the capacity for people to use those images as the foundation for AI-generated depictions.
According to a range of warning posts that have been shared across social media, much of that concern relates to a recent court case, in which a U.S. federal court judge ruled that it is technically legal to privately possess images or videos of child sexual abuse that were generated using artificial intelligence, based on First Amendment protections related to privacy.
As reported by the Washington Post, the ruling suggests that it’s legal not only to possess these images but to use images of kids to generate virtual CSAM content, so long as the material does not depict a real person, and so long as the resulting content remains in the home and is not distributed.
This essentially means that generating virtual CSAM via AI tools is not currently illegal, under specific circumstances. However, much of the discussion within the ruling itself relates to the potential impact of the latest AI tools on First Amendment, which may need to be updated for the AI generation.
As outlined in the ruling: “We now live in an age where GenAI models can render images depicting the abuse of virtual children that are virtually indistinguishable from those depicting the abuse of actual children. This case illuminates how this evolving technology complicates the lines drawn by the Supreme Court in Stanley, Osborne, and Free Speech Coalition. Indeed, in Free Speech Coalition, the Supreme Court addressed the scope of First Amendment protections for virtual CSAM, but that was nearly twenty-five years ago, and the image-generation technology available today was likely unimaginable back then. Given the relentless advancement in artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves.”
So while the law exists that offers protection for private images at present, the ruling points to the potential for changes based on evolving technology.
Even so, that technically means that, right now, people can use images of children collected online as source material for CSAM content. That content can’t legally depict real people, but generative technology enables the generation of images based on real content.
As reported by Business Insider, this gray area has led to a wave of professional photographers making changes to their posting approach, and withholding images that include children’s faces.
This could also be a consideration for marketers. Sharing content that shows a child’s face could present problems, even if it’s illegal to generate images that depict a real person.
Where each person or business draws the line on this will come down to individual assessment of the ruling, and the state of current laws related to privacy protections. But it is worth staying informed of current legal standards.
