Comment by daturkel | Hacker News Reader

Comment by daturkel | Hacker News Reader

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In the USA:

Provisions against simulated child pornography were found to be unconstitutional in Ashcroft v. Free Speech Coalition [0] in 2002.

From wiki [1]:

> Referring to [New York v. Ferber, 1982: child pornography is not protected speech], the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children".

IANAL, but following that logic alone, the degree of realism doesn't seem to be relevant to the legal precedent insofar as photorealistic imagery would still "record no crime" nor "create victims by its production." As to whether it's dangerous for such material to exist because it would create plausible deniability for the production of actual photography while claiming it's simulated...I guess that would be a different matter.

[0]: https://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalit...

[1]: https://en.wikipedia.org/wiki/Child_pornography_laws_in_the_...

They actually fixed this with the 2003 PROTECT act which only makes obscene simulated child pornography illegal. Because obscenity isn't protected by the first amendment this has been found to be constitutional.

It's hard to say that changed anything. Obscenity is a notoriously thorny subject in American constitutional law. The legal test for determining obscenity[0] is highly subjective and in the context of the internet very difficult to apply.

[0] https://en.wikipedia.org/wiki/Miller_test

Highlights from: https://en.wikipedia.org/wiki/Miller_test

The test:

* Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

* Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,

* Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Also:

Critics of obscenity law argue that defining what is obscene is paradoxical, arbitrary, and subjective.

---

I think it would be hard to not find generated child porn obscene by this test, unless you have a good lawyer, at which point there is plenty of wiggle room.

I think the technical feats involved in creating such a text-to-image program might allow a talented laywer to make an argument for scientific value.

There's also the issue that "contemporary community standards" are hard to determine, because what community you're talking about is hard to determine.

While no one was harmed in the direct creation of a generated video, can it not be argued that in order to train such a generative engine, it is highly likely that harm-inducing content was produced/consumed at some stage?

Where does the harm boundary lie? Is harm inflicted if an inanimate object is the only thing consuming the content? Is a generated video borne from harmful content an interest payment on your harm-capital?

Meta, but interesting I wonder whether this train of thought would hold in a court of law...

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