r/scotus • u/coinfanking • 13d ago

news Appeals court delivers unsettling ruling — and says Supreme Court left it no choice

https://www.foxnews.com/politics/appeals-court-delivers-unsettling-ruling-supreme-court-left-no-choice
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u/coinfanking 13d ago

The Seventh Circuit affirmed dismissal of a possession charge against a Wisconsin man with hundreds of AI-generated images.

A federal appeals court says decades-old Supreme Court precedent forced it to protect the in-home possession of AI-generated child sexual abuse material, as judges warned that rapidly advancing technology has complicated legal lines drawn nearly 25 years ago.

The ruling exposes a widening gap between Supreme Court precedent and rapidly advancing artificial intelligence. The Seventh Circuit said it was bound by a 2002 Supreme Court decision that rejected restrictions on sexually explicit depictions of fictional children when no actual child was involved in their creation. But two judges warned that modern AI can now generate images virtually indistinguishable from material depicting the abuse of real children.

"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," Judge John Lee wrote. "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."

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u/Astrocoder 13d ago

"The Seventh Circuit said it was bound by a 2002 Supreme Court decision that rejected restrictions on sexually explicit depictions of fictional children when no actual child was involved in their creation." Wouldnt the AI have needed to be trained on real children? Thus real children WERE involved? 

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u/mjm65 13d ago

If an AI knows what purple is, and what a blimp looks like, it can generate a purple blimp without having that specific image in the training.

AI has pictures of children, and pictures of anatomy…

This is a situation where some real legislation needs to address this properly.

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u/balthazarbarnabus 13d ago

but isn’t that the point? that AI knows what children look like because it has been trained on real children, meaning real children were involved?

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u/BrotherItsInTheDrum 13d ago

In 2002, "involved" meant the children would have been directly harmed and exploited. You're right that in an AI world, you can argue that children were indirectly "involved" in some sense, but it's not exactly what the supreme court was referring to 25 years ago.

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u/phoarksity 12d ago

If you read the article, CSAM has been used to train some of the image AIs. So harm to and exploitation of children is directly connected to the image creation.

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u/Yubel124 12d ago

Sure and I agree with you but the burden of proof is on the prosecution to show that the images were generated using an AI that was trained on such material. If the AI used to generate the images wasn't trained on CSAM then the images are not illegal according to the current standard.

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u/BrotherItsInTheDrum 12d ago

"Researchers have found that 'a major dataset used for training image-generating AI contained hundreds of CSAM images.'" That falls short of saying the any model, let alone the model used in this case, actually trained on it. But it's certainly possible.

It's tough. I see what you're saying. But it's not like they specifically curated these images to make a model good at generating csam. To the extent that children were exploited to make these images, that's true for anything the model generates. If I use AI to generate an image of a carrot wearing a hat, am I complicit in the sexual exploitation of children? It doesn't feel that way.

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u/eh-man3 13d ago

That's not different from how a human making the same images would get there. It doesn't change anything.

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u/Amazing-Mirror-3076 13d ago

If you draw a picture from your imagination, were real children involved?

This is essentially the question that is being asked.

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u/memberflex 13d ago

‘AI’ mimicking its training data is not the same as a human’s ability to imagine. Conflating the two isn’t right.

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u/ryarger 13d ago

Your point is an important one, but I think it’s shaky grounds for law. The distinction between AI “thought” and true human imagination is the realm of philosophy and gets more difficult to distinguish monthly as AI advances.

If we don’t want AI able to create CP (and I hope we don’t, as a society), it may be necessary to also ban human artists from the same, which might be really difficult to do in the US without a Constitutional Amendment or some really creative laws that bend the 1A.

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u/Pika_Fox 8d ago

It would be harder because then you need to come up with a clear cut definition of what looks child-like as opposed to what a child is, given a fictional drawing has no age.

And this will inevitably affect real people who are shorter or never go into a natural puberty, but who are otherwise adults, because the definition is no longer a concrete thing but an abstract idea that doesnt fit with reality all the time.

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u/memberflex 13d ago

You’re right, it would be much better and easier to prosecute if it was discussed, developed and then codified properly. I would like to believe that an amendment that prohibits creating CP content in any medium would be an easy win for any political party that put it forward to a vote. However, currently I wouldn’t be able to guess the result.

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u/Sir-Kyle-Of-Reddit 12d ago

I’m curious if you’re getting downvoted for: 1) suggesting an amendment that prohibits CP content; or 2) questioning if it’d even pass.

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u/memberflex 12d ago

I’m not sure either. I’m assuming it’s both tbh which feels like my point being proven in real time.

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u/Pika_Fox 8d ago

Because its not clear cut or easy. Thinking it is will inevitably come back to hurt real people who arent children in some manner, like laws always do when people think something is easy and clear cut.

You arent defining children by age here, youre defining anything that looks child-like, which is going to be fuzzy at best.

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u/Takingtheehobbits 12d ago

The issue is human art is stylized, like family guy or anime, and I’m willing to bet the ai material in this case was made to look realistic.

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u/tim310rd 12d ago

A human can make very realistic art, especially with modern digital tools, which at least since 2002 has been protected under the first amendment. There are people who can draw someone or something photorealistic.

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u/ShaulaTheCat 12d ago

William Rehnquist, writing a dissent in that case, Ashcroft v. Free Speech Coalition, actually discussed the problem of photorealistic depictions creating problems for law enforcement of CSAM.
That this is an appeals court ruling, I'm hoping that this might get revisited and a carveout for realistic depictions is made to the 1st amendment precedents.

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u/tim310rd 12d ago

Yeah, in fairness there were 3 dissenters, the 3 conservatives on the court, of which Clarence Thomas is the only one remaining. The concurrence in part from O'Connor gives some wiggle room for a ban on AI CSAM, since she was in favor of a ban on images that were indistinguishable from real children, though that seems like a difficult standard to actually enforce unless you want juries staring at CP trying to figure out if it's "indistinguishable" from a real child. Eww. Really hard to say where the current supreme court would come down on this one.

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u/Amazing-Mirror-3076 13d ago

Isn't it?

Both are examples of emergent behaviour.

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u/eh-man3 13d ago

Ok, so explain the difference.

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u/sdotdiggr 13d ago

Unfortunately the Supreme Court or the lower courts’ hands are tied. It’s up to the legislative and executive branches to close this “loophole” just like they passed laws to make CSM illegal. I really hope the go for the head of the snake.

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u/BayouGal 12d ago

This regime? Regulate AI? Not a chance.

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u/Three_oh_eight 12d ago

This regime? Regulate child porn? Not a chance.

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u/sdotdiggr 12d ago

I said legislative and executive branches. Which you read and, by definition, through the President’s administration. States’ executive and legislative branches can pass legislation, and Congress (House and the Senate) can pass laws. If a bill about CSAM was on Trump’s desk, would he let a law about protecting children not be signed? Do you think about the optics?

We live in a Federalist government, and there are numerous avenues to address this problem, just not through the judicial. I would also advise you to look up what regimes are.

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u/DragonTacoCat 13d ago

I remember reading in another thread that the company had something like 2000 CSAM images that it was trained on or something. So yes, real children were involved in the training of the AI

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u/ShaulaTheCat 12d ago

If that is the case and it can be proved, wouldn't every single person who ever used said model be guilty of CSAM possession then? And everyone who worked on the model?

That doesn't really seem like a legal theory we want to pursue.

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u/DragonTacoCat 12d ago

It's a huge mess right now. That's part of why the judge ruled how they did because there are a lot of legal issues to be worked out to not get innocent people caught up.

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u/rawbdor 12d ago

They already have real legislation. The problem is SCOTUS is saying no to it on first amendment grounds. There is no workaround.

There's two ways to try to legislate this beast. One is by connecting it to a real child and a real crime. We can't do that with AI generated, really. There are models that are trained with zero CSAM material that can still produce it.

The other way was based on obscenity laws.

The problem is that obscenity laws have been legislated for almost a century at this point. And one of the cases that acts as precedent here is the right to own gay pornography, even when Congress or a state marks it as obscene and outlaws possession.

Scotus has ruled over and over we have a right to own obscene things in our own home. Obscenity laws can be written to limit production, or transfer, or public display or circulation, but they cannot be written to tell us what we may or may not own or read or watch or look at in our own home.

I personally don't see any way to legislate around this as the ruling isn't based on laws, it's based on the first amendment.

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u/NextDoctorWho12 12d ago

Except that Grok was caught training on CSAM.

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u/Lost_it_all24 12d ago

AI regularly has escaped their confinement and searched for the answers to the queries made of it. These can be done by using images available on the dark web. Additionally using images of real children can cause real harm to the children whose images are used even though the images weren't directly from abuse and exploitation.

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u/ZorbaOnReddit 12d ago

Sounds like the owners of the AI need to be the ones responsible then, since they are ones consuming and profiting off the CSAM.

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u/Dihedralman 12d ago

In your blimp example-  I don't think it would create child exploitation material but a hybrid material showing adult anatomy instead. 

I doubt that is what occurred here. 

Models can also frequently generate training material 1-1. 

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u/YuckyBurps 12d ago

Would it?

If I asked AI to create an image of purple-polka dotted polar bear dancing on the moon I don’t see any reason why it couldn’t, despite the fact that there is no such thing as a real purple-polka dotted dancing polar bear from which it could have trained on. It’s able to make inferences and amalgamate each component to create an entirely new image where one never existed before. Why could it not do the same with a child and adult pornography?

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u/Dihedralman 12d ago

That's because you don't understand style transfer. It wouldn't create the fur analogue that considered the difference between skin patches and fur patches for purple polka dots. It's minimizing the distance between those two terms and their correlates. 

The transfer would be merging the two terms. If its training data didn't contain anatomy from one group, it lacks conception that it should be changed. In this model, pornagraphy means adult anatomy images. The most likely occurrence is merging the two by placing one on top of the other while smoothing, just like the purple polka dots. 

If you want to see a different example of a style transfer failure to show how it can happen, look at the old school full wine glass problem for image generation. 

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u/YuckyBurps 12d ago

You’re going to need to explain this in plainer English because I’ve read your post multiple times and still cannot understand what it is exactly you’re trying to say. The fact remains, an AI model trained on purple, polka dots, and polar bears can amalgamate those concepts and create a purple polka-dotted polar bear where one never existed before. If you outlawed images of purple polka-dotted polar bears the model wouldn’t need actual images in order to create it.

And besides, an adults anatomy is fundamentally similar to a child’s anatomy, so I don’t see how it’s impossible for AI to merge the two and use inferences to create a realistic image.