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.