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How about a different kind of AI culture war? I speak of course of non-consensual pornography generation. The most outrageous article I read about this recently was probably this AP article: Boys at her school shared AI-generated, nude images of her. After a fight, she was the one expelled. The girl in question is 13 and she started a fight on a school bus with one of the boys later charged with a crime for sharing the images.
It turns out that finding apps that advertise this kind of functionality is not hard. In fact, part of the reason I bring this up is it seems this capability is integrated into one of the largest AIs: Grok. There's been some controversy on X over the last couple days after Grok allegedly generated pornographic images of a couple minor girls. Additionally the bot's "media" tab was disabled, allegedly due to the discovery lots of people were using the bot to make pornographic edits of other people's pictures. Though the media tab is gone I did not find it very hard to get Grok to link me its own posts with these kinds of edits.
There is, I think understandably, a lot of controversy going around about this. It's not that it was previously impossible to make this kind of content but the fidelity and availability was much more limited and certainly required more technical skill. Being something you can do without even leaving your favorite social media app seems like something of a game changer.
Frankly I am unsure where to go with this as a policy matter. Should someone be liable for this? Criminal or civil? Who? Just the generating user? The tool that does the generating? As a general matter I have some intuitions about AI conduct being tortious but difficulty locating who should be liable.
From a legal standpoint, what is the theory for the 'harm' caused in this instance. And to whom?
Liability of any kind usually rests on the idea that someone's interests were injured and in need of redress.
We are able to statutorily 'create' interests (the Americans with Disabilities Act did this, for instance) but I think we'd smack into 1A issues trying to make it completely illegal to post manipulated images of people who... are already posting images of themselves online.
Most obvious angle is copyright/IP, but they're still sorting that out for AI works.
I'd kinda love for them to go at it from the obscenity angle. Because that would also suggest that the women posting thirst traps are doing something wrong too.
I think there's a plausible false light (and defamation per se) claim, given that the images in this situation were being shared and would be themselves illegal for her to produce. Even for deepfakes-of-adults, false claims of sexual promiscuity would fall into these categories. There's some theoretical examples where a Falwell v. Hustler-style defense would be relevant in the case of a public figure where the deepfakes were clear parody, but that's pretty far from the typical case. But from a traditional law perspective you don't have to pull a Gorsuch to find a civil tradition against this sorta stuff.
Useless, though, since the kid who did it's judgement proof. In theory, the state law would allow six months imprisonment per act, but in practice that's really not how the juvenile court systems work, and even an adult doing this to another adult is more likely to just end up with a fine. And while both the boy generating the deepfakes and those passing it around (or even receiving it) could probably charged with federal CSAM stuff, that's such a nuclear option it's extremely unlikely anyone would seriously even threaten it here.
Which is part of why the whole thing is such a mess.
Given that teenagers have been charged with the production, possession, and distribution of CSAM for sending nudes of themselves, CSAM charges in this case don’t strike me as anything close to nuclear, assuming the police can recover the images from Snapchat. The only thing I’m not certain of is whether they actually broke any CSAM laws. Is it actually illegal to draw a photorealistic, but fake, image of a nude minor? Perhaps more to the point, given how AIs usually seem to handle NSFW requests, is it illegal to put the face of a minor on top of the body of a definitely-grown adult? I have no idea, and it’s not something I’m eager to google.
I'm mostly using "nuclear" in the sense of "the biggest available weapon, and its resulting proportionality concerns". Those style of prosecutions happen, but they're pretty uncommon, even though there's good evidence to think the chargeable conduct happens more often than anyone wants to think about.
In the US, it's a federal felony under the PROTECT Act, unless the content also has serious literary, artistic, political, or scientific value. Enforcement is pretty rare, though, since the feds don't want the law to get another challenge like Ashcroft.
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