I know that 99% of people cannot tell an AI image from a real photo since that "Last giant irish greyhound 1902" photo has been going around on social media for weeks, and it is, to me, unbelievably obvious AI.
But the proposed scanning system is the wrong solution, regardless of any "real or AI" ambiguity, because it's possible to generate false positives with nonsense images that aren't even close to the expected CSAM, real or otherwise.
The reason I think it's a bad idea to differentiate between real or AI is similar to the arguments against "means testing" for distributing benefits. You don't want to put real victims in a situation where they're deprived of justice because they can't prove that their victimization was "real." Imagine a real CSAM criminal claiming a defense that they "thought it was AI generated." Do you want to give them that out?
If protecting those victims comes at a cost of punishing criminals possessing AI-generated CSAM with sentences equally as harsh as those for "real" CSAM, then it's a worthwhile cost to pay. They are still criminals, and they are definitely not innocent (unless they're being framed, but that's a risk with both real and AI images).
"I thought she was 18" doesn't work for physical sex either.
Saying "I thought this heroin was fake" is not a defense when caught with a bag of heroin, I don't see how this would be any different. It's not a magic out for anyone.
These are situational circumstances, and no prosecutor in the world would choose to prosecute those - but there is 0% chance you could get away with saying "oh I thought it was fake" if caught with CP on your phone.
It’s that you have a bag of fake heroin, you are then arrested for it because someone thinks that by you having fake heroin you are encouraging real heroin users to do more real heroin.
Why do you believe that?
For the same reason, victims don't get to pardon crimes committed against them.
... which is the way it should be, because criminal punishment should not be seen as a form of revenge, but as a deterrent.
For instance, there is no "victim" if I got caught enjoying cannabis in my own home in a jurisdiction where such a thing is illegal, but "the people" have made a decision that they don't like it and I should be punished for committing an anti-social act.
That is one of the fundamental aspects of democracy at work.
From a purely ethical standpoint: why? What is the purpose of punishing someone who has harmed no one?
No victim means no crime.
In this case, by giving every CSAM criminal a potential excuse that they "thought it was AI generated," the real victims are further victimized by being deprived of justice or forced to prove their realness.
(There are times when it is important to have commonality while the choice of the common practice isn't important, which justifies regulations of obviously ethically unimportant things like "which side of the road is it correct to drive on relative to the direction of travel"; but where the purpose of a crime is purely to lower the evidentiary bar to punish people presumed guilty of a narrower crime, that's just an attempt to hack around the presumption of innocence and the burden of proof of guilt.)
If you believe, as I do, that such a person is guilty of a crime, then we're not risking the false guiltiness of an innocent person. At best, we're risking their level of sentencing. And I'm open to the idea of reduced sentences for AI CSAM, but it shouldn't be a factor in determination of guilt (i.e. it should be a matter between the judge and the defendant, rather than something the prosecution needs to prove).
With regards to CSAM criminalization in general, there is a real risk of punishing innocent people that may have been framed by planted evidence. But this is a risk regardless of whether the evidence is "real" CSAM or not, so legalizing possession of AI-generated CSAM doesn't reduce the risk of an innocent person being framed. It might make it "easier" for a bad actor to frame someone, since they can now do it with AI content instead of real content. But if they're already planting evidence, do they really care whether they're committing a crime while preparing the evidence? And besides, if we keep the AI content illegal, then it's equally legally risky to frame someone with it as it is to frame them with real content.
The problem of prosecuting "innocent" people, whether you believe they're innocent because they were framed or because they're only guilty of possessing AI-generated CSAM, should be addressed at the time of enforcement. Stop using entrapment and fishing expeditions as an enforcement mechanism. Only open investigations when they start with a real and identifiable victim, rather than a potential perpetrator.
> If you believe, as I do, that such a person is guilty of a crime,
You just explicitly said upthread that ethically they are not, but argued that it is useful for them to be treated as criminals because it denies an excuse to those who are ethically guilty because they are possessors of genuine CSAM.
You seem to be moving your fundamental ethical premises around in response to it being pointed out that the argument you previously made conflicts with a different widely proclaimed ethical premise.
There is literally no victim of any kind, even conceptually, in the case of computer generated imagery. It should be protected artistic expression.
Your logic would seem to imply that there's no crime with possession of real CSAM either, and that the only crime lies with the original abuser who took the pictures.
Unless there is a very specific "attempt to acquire CSAM" law then no they're not fucking guilty of any crime. If you live in a state where marijuana is illegal and you smoke some oregano because you thought it was marijuana you're not guilty of actually possessing marijuana.
A criminal law is composed of a number of individual statutes. When a state is trying to prosecute someone for a crime they need to prove three elements for each statute: the criminal act (actus reus), intent (mens rea), and the concurrence of both of those.
If a cop sells you oregano and you think it's marijuana you might have the intent to buy marijuana but there's no actual criminal act because oregano isn't illegal. If you make a law that only requires intent then congratulations, you've created thought crimes.
If you want to make entirely fake CSAM possession illegal, that's essentially the same as an intent-only law and creates thought crimes. It's a slippery slope.
It wasn't a cop, but I recall a case some years back when someone sold something as cocaine when it wasn't. Among other things, he went down for fraud.
You're a lawyer, I take it? I'm not a lawyer, and I admit your analysis of this scenario confuses me. Is there no legal difference between merely having intent to commit a crime at some point in the future, and actually attempting to commit a crime?
> Is there no legal difference between merely having intent to commit a crime at some point in the future, and actually attempting to commit a crime?
That was my point. To be charged with and prosecuted for a crime you need to both intend to commit it and then actually/attempt to commit it. Attempted murder is a crime, I both intend to kill someone and try to do so even if I fail. It's not punished as severely as actual murder but it's still a crime. But attempted murder is actual a specific crime in the criminal code. There's elements of it that need to be proven in court.
Unless a jurisdiction has a crime of "attempted possession of marijuana", intending to buy marijuana but ending up with oregano isn't a crime someone can be charged with. If we start writing laws outlawing attempted possession it's a slippery slope that gets into outlawing thoughts. It also opens the door to stupid pre-crime ideas like someone would only use cryptography to get ahold of illegal content therefore anyone using cryptography is instantly guilty of attempting to get illegal material.
You can be sure this is what will happen because it's the very arguments the anti-cryptography groups use.
Source: decade in the criminal justice system.
I had previously proposed that if the abuser has been caught that the victim should get the rights to the images and once they are an adult be allowed to legally sell them (thus a list of legally permitted images), but the AI image revolution has changed that. Have AIs sign their images, CSAM with a proper signature is legal.
To choose a less emotional subject, mattress tags.
The ethical reason for mattress tags is because historically people would sell mattresses stuffed full of all sorts of unsavory garbage. What we actually criminalized, or at least were trying to prevent, was some sort of fraud or public endangerment.
But we also along the way made it illegal for sellers to remove the tags from mattresses.
Removing the tag isn't inherently harmful; if you don't deceive the purchaser on the contents of the mattress, it's not even fraud.
But we broadened the definition of the crime to make it easier to enforce.
In a lot of jurisdictions the decision has been made, whether it is right or wrong, to criminalize AI CSAM. The people have spoken and the lawmakers have made the laws. If you or I think that is wrong then the options are to lobby for a change.
That is not an argument against the concept that that should not be the case.
To put it another way, consider a thought experiment where a police officer generates CSAM with AI and then sells it to someone who thinks it's a real picture of a real victim. We should arrest the buyer, right? They thought they were committing a crime.
If you looked at it through a purely ethical framework then you could never convict the person because there was never any "real victim." But is that the right way to look at it? It's certainly not the way most people look at it.
I disagree. The point is to reduce actual child abuse. The images are in a way only tangential. If an image is made with an AI with no actual child being abused, then it shouldn't be a crime.
In a way, it's better, because it will distract the crowd of people into this sort of stuff from activities that harm real people.
This is actually the main point in dispute, and almost everyone arguing one side or the other on this topic seems to assume one side or the other on this point and argue from there, rather than seeking to support their position on the fundamental disputed fact question.
Which results in the most of the debate being people talking past each other based on conflicting assumptions of fact.
This needs to be balanced against rights to privacy and expression, which I personally think take precedence, but pretending that it can serve as harm reduction is just not correct.
But I'm sorry, I just don't believe anyone holed up in their room with a bunch of fake CSAM is "just using it as an outlet" or "protecting real kids from harm." I mean, it almost sounds like a threat: "If you don't let me look at these pictures of fake kids, I'll hurt real kids." If that's the case then they should be seeing a psychiatrist, at minimum.
Violent movies that appeal to teens reduce vandalism and the like--they're in the theater rather than out causing trouble. (And it's not displaced, rates don't spike later, they just return to normal.)
My point isn't that AI CSAM should be legal or not, but whether these tools can differentiate what the lawmakers have decided is a crime or not.
Those who have no sexual interest in children are neither going to have CSAM nor engage in abuse. The fact that they had CSAM already shows it's a highly non-random sample. The control would be pedophiles with no access to CSAM--but how do you find that control group????
>I disagree. The point is to reduce actual child abuse.
There are limited resources, practically the only way to do this is to make it illegal to have anything that looks real (or looks derived from a real situation, in a 'I will know it when I see it way'). Otherwise, you're just making an almost impassable defence of 'it is fake' or 'I thought it was fake'. Then you can't practically reduce actual child abuse.
Thus I see no reason they would differentiate. With normal adult porn do we care that makeup and such might be involved?
I don't understand your comparison with adult porn; that might be nonconsensual but typically isn't, whereas CP is nonconsensual by definition because minors aren't legally capable of agreeing. Obviously there are grey areas like two 17-yos sexting each other, but most courts take that context into account.
I see that assertion a lot. If that's how that works, why does the very large amount of CSAM already in existence not have the same effect? Why would synthesized CSAM distract pedophiles from their activities when real CSAM from their fellow pedophiles doesn't?
I don't think they meant it would be 100% effective. And real child pornography may deter future abuse. Research is inconclusive.
Yucky as it is I believe the answer here is to have image-generating AIs sign their work. Something properly signed is known not to involve any actual children and would thus be legal.
(My philosophy in general is that for something to be illegal the state should be able to show a non-consenting victim or the undue risk of a victim (ie, DUI). I do not believe disgusting things in private warrant a law.)
The issue is that the people (and the legislators) in each jurisdiction have made a choice that AI CSAM is not illegal, and therefore this runs the risk of falsely accusing someone of a crime.
[if you disagree that AI CSAM should be legal in your jurisdiction the solution isn't to arrest everyone, but to petition your lawmakers to change the law]