7th Circuit Rules that CSAM Possession Is Protected by the First Amendment
As we have previously covered, the proliferation of A.I. technology has led an uncomfortable question for courts, namely how to treat computer-generated child sexual abuse materials (“CSAM”) and whether or not they are legal. While Congress has passed laws forbidding “deep fakes” or A.I. generated materials that depict actual people/minors in false sexual conduct, there is a broader question when it comes to the legality/ability to prosecute those who possess completed fabricated CSAM materials through A.I. technology. Recently, the Seventh Circuit handed down a decision that could reshape how federal courts approach charges involving explicitly A.I.-generated CSAM in certain situations. In United States v. Anderegg, a unanimous panel affirmed the dismissal of a federal possession of CSAM charge for a criminal defendant, holding that the statute he was being prosecuted under was unconstitutional as applied to a defendant who possessed A.I.-generated CSAM in his home that did not depict a real child. In the case at hand, Steven Anderegg, a software engineer with a reported “background in AI models,” used an open-source generative AI model to create hundreds of hyper-realistic images of prepubescent children engaged in sexually explicit conduct. Anderegg then allegedly sent some of those images to a minor via Instagram, which triggered a CyberTipline report from Meta to the National Center for Missing and Exploited Children (otherwise known as “NCMEC”) On a side note, there are various unrelated legal issues related to the reporting of tips to NCMEC and in turn how NCMEC reports the tips to law enforcement). After law enforcement linked the Meta account to Anderegg, they executed a search warrant on his home and devices, seizing them for further investigation that ultimately led to a four-count indictment, including three different charges of producing, distributing, and transferring the images to a minor and one count of possession of obscene visual depiction of a minor engaging in sexually explicit conduct. Anderegg moved to dismiss the possession count on First Amendment grounds, which the district court granted and the appeal followed. At oral argument, the government conceded that the images making up possession did not depict any actual child and they could not be linked to a real child, which became the fulcrum of the entire case and shaped the judges’ reasoning in arriving at their ruling in affirming the dismissal of that charge.
In upholding the district court’s dismissal, the Seventh Circuit’s turned on the interplay of Supreme Court cases revolving around the interaction between the First Amendment, what is characterized as “obscene materials” and the right to possess them, and a 2002 case, Ashcroft v. Free Speech Coalition, which struck down the Child Pornography Prevention Act’s ban on virtual CSAM because the material did not involve actual children and therefore did not implicate a government interest which would make the conduct illegal. While acknowledging the case raises serious implications given the nature of child pornography and the government’s desire to root out actual sexual abuse of minors, the 7th Circuit found that the Supreme Court has contemplated and rejected such reasoning in Free Speech Coalition, but did agree that, “Given the relentless advancement in artificial intelligence models, we have some concerns about the lines these cases draw, but we are not free to redraw them ourselves.” In the concurrence, Circuit Court Judge John Z. Lee, joined by Judge Joshua P. Kolar, wrote separately explicitly asking for, “additional guidance from the Supreme Court regarding the intersection between the First Amendment and virtual CSAM,” quoting a law review article which stated that, “In 2002, the Court’s reasoning [in Free Speech Coalition] made sense: Technology was far less developed than it is today.” While standing by their reasoning given Supreme Court precedent, the Judges seemed to be inviting the Supreme Court to revisit their reasoning given the technological advancement of A.I., meaning this victory could be a short-lived one should the Supreme Court revisit the issue.
What This Means For Client Facing CSAM Charges
In the immediate aftermath of the ruling, at least in the 7th Circuit, Anderegg is now binding precedent and can be used to argue that mere possession of entirely A.I.-generated CSAM in one’s own home is constitutional under the First Amendment. Note, however, that the production, distribution, and transfer charges were not dismissed in the underlying case, meaning even entirely A.I.-generated CSAM can still lead to criminal charges, even in the 7th Circuit, depending on any conduct beyond mere possession. However, the underlying reasoning beyond the Anderegg decision could further open the door to other general challenges to A.I.-generated CSAM-related charges. For now, criminal defense attorneys in the 7th Circuit and beyond should understand that A.I.-generated CSAM possession charges may be subject to dismissal, but the Supreme Court could ultimately revisit the issue and clarify or redraw the lines of what is protected under the First Amendment.
