Submitted by Friedman Nemecek on
Rapid advancement in technology requires that the law evolve at the same pace to maintain a digital landscape that works to the benefit of all American citizens. The light-speed expansion of AI presents, and will continue to present, legal questions and challenges that must be developed with the utmost sense of urgency. An example of this need is found in the area of AI generated erotica. Sam Altman, the boss of ChatGPT-owner OpenAI, recently indicated that it will begin allowing users who have verified they are adults to access “erotica”. Competing to enter the new adult space first, Elon Musk has also thrown his AI, Grok, into the arena.
Musk’s Grok is to offer chatbot girlfriends that can engage in sexual conversation. ChatGPT will reportedly allow users to generate porn as it races to compete with the more explicit chatbot built by Musk. Both seek to build a virtual world that will offer personal fantasy and intimacy to their users. Both claim to have made their respective platforms safe from minors and sensitive to the serious mental health issues that may result from exposure to adult sexual material. Accepting that these issues have been effectively addressed, there remains questions of what material is acceptable under U.S. law and what will violate existing law.
This piece focuses on two particular areas of law pursuant to the United States Code. They are:
1. Possession and Distribution of Obscene Material – 18 U.S.C. § 1460, et seq.
The U.S. Supreme Court established the test that judges and juries use to determine whether matter is obscene in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The three-pronged Miller test is as follows:
- Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
- Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
- Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Federal law prohibits the possession with intent to sell or distribute obscenity, to send, ship, or receive obscenity, to import obscenity, and to transport obscenity across state borders for purposes of distribution. Convicted offenders face fines and imprisonment. It is also illegal to aid or abet in the commission of these crimes, and individuals who commit such acts are also punishable under federal obscenity laws.
In addition, federal law prohibits both the production of obscene matter with intent to sell or distribute, and engaging in a business of selling or transferring obscene matter using or affecting means or facility of interstate or foreign commerce, including the use of interactive computer services. (See 18 U.S.C. § 1465; 18 U.S.C. § 1466). For example, it is illegal to sell and distribute obscene material on the Internet. Convicted offenders face fines and up to 5 years in prison.
2. Sexual Exploitation of Children (Production of child pornography) – 18 U.S.C. § 2251, et seq.
Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law. Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law.
Notably, the legal definition of sexually explicit conduct does not require that an image depict a child engaging in sexual activity. A picture of a naked child may constitute illegal child pornography if it is sufficiently sexually suggestive. Additionally, the age of consent for sexual activity in a given state is irrelevant; any depiction of a minor under 18 years of age engaging in sexually explicit conduct is illegal.
Federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce (See 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A). Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law.
The above laws are aimed at protecting victims, both adult and minors. A victim is currently defined by law as a person against whom the criminal offense or delinquent act is committed or someone who has been directly and proximately harmed by the commission of a criminal offense or delinquent act, other than the __person_ who committed the criminal offense or delinquent act. So, what happens when one of the parties to the communication is entirely virtual? Can human behavior – however offensive – victimize that which is not human? If an adult actor shares otherwise illegal matter with a Bot, is existing law actually violated? Will this new frontier allow for conduct that once was illegal because of the lack of the traditionally defined victim or will the Department of Justice pursue prosecutions based solely upon the conduct alone? These are just some of the questions that will be faced in the very near future. The law will have to be defined and applied at a quick pace in courtrooms across the United States. If not, a small number of global technology companies will have the power to control right versus wrong.
Friedman Nemecek Long & Grant has been at the forefront of evolving technology within the criminal justice system since the government first made such prosecutions a priority. This firm led the way and helped to define the law when child exploitation material was being defined relative to the advent of widespread internet use. For almost three decades, our lawyers have defended technology cases across the United States and internationally. By combining a keen understanding of technology with creative investigative and trial strategies, the lawyers of Friedman Nemecek Long & Grant will continue to lead our individual clients through their most difficult times and secure the most favorable results on their behalf.
For more information about Friedman Nemecek Long & Grant or to seek a consultation, please visit www.iannfriedman.com.
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