The United States appeals court has ruled that a Wisconsin man cannot be prosecuted for possessing AI-generated images depicting child sexual abuse when the images were created without the involvement of real children and kept privately.
The controversial ruling was made because of existing Supreme Court precedent protecting the private possession of obscene material that does not involve real children.
The Seventh Circuit Court of Appeals upheld a lower court’s decision to dismiss the possession count against Steven Anderegg, while leaving other criminal charges against him in place.
Case involved AI-generated images
According to court documents, Anderegg, 44, allegedly used AI model called Stable Diffusion to create thousands of realistic images of minors.
Authorities said many of these images depicted nude or partially clothed minors displaying or touching their genitals or engaging in sexual intercourse with men. Evidence recovered from Anderegg’s electronic devices revealed that he generated these images using specific, sexually explicit text prompts related to minors, which he then stored on his computer.
Additionally, Anderegg allegedly communicated with a 15-year-old boy and described how he used Stable Diffusion to convert his text prompts into images of minors.
Anderegg also allegedly used Instagram direct message to send the boy several Ai images of minors displaying their genitals. Anderegg came to the attention of law enforcement through a CyberTip from the National Center for Missing and Exploited Children (NCMEC) after Instagram reported Anderegg’s account to NCMEC for distributing these images.
He was subsequently charged with producing, distributing and transferring obscene visual depictions of minors, as well as possessing obscene AI-generated images.
The appeal concerned only the possession charge.
Supreme Court precedent binding
The appeals court said it was bound by earlier US Supreme Court decisions protecting the possession of obscene material in the privacy of one’s home and distinguishing virtual child sexual abuse material from images involving actual children.
The judges said the images in this case did not depict or involve real children, meaning the government’s arguments for criminalising their private possession had already been rejected by the Supreme Court.
One case, decided in 1969, affirmed that individuals may possess material deemed “obscene” in the privacy of their homes. Another, handed down in 2002, effectively extended legal protection to sexually explicit images depicting fictional children.
“Because we conclude that Stanley and Free Speech Coalition control Anderegg’s as-applied challenge… we must affirm,” the court said.
Judges express concern about AI technology
Although the court ruled in Anderegg’s favour on the possession count, the judges acknowledged that advances in artificial intelligence have made AI-generated child sexual abuse images increasingly realistic and difficult to distinguish from images depicting actual children.
The panel said it had “some concerns” about applying decades-old Supreme Court decisions to modern AI technology but stressed that only the Supreme Court could change those legal precedents.
In a separate opinion, one judge said additional guidance from the Supreme Court would be helpful because AI-generated child sexual abuse material is now “virtually indistinguishable” from material involving real children.
Other charges remain
The ruling does not end the criminal case against Anderegg. The appeals court affirmed only the dismissal of the possession charge, while charges alleging he produced, distributed and transferred AI-generated obscene images remain pending in court.
The decision applies within the Seventh Circuit, which covers Illinois, Indiana and Wisconsin.
The judgment deals solely with the limited issue of possession. It does not suggest that every form of conduct involving AI-generated child sexual abuse material is legally protected, nor does it stop prosecutors from proceeding with the remaining charges against Anderegg.
sinenhlanhla.masilela@iol.co.za
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