Existing law makes it a crime to, among other things, possess any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct.

This bill would, for the purposes of those provisions, include an image generated through the use of artificial intelligence intelligence, as defined, as a computer-generated image. By expanding the scope of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime to, among other things, possess any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct.

This bill would, for the purposes of those provisions, include an image generated through the use of artificial intelligence as a computer-generated image. By expanding the scope of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 933

Author:(Wahab) – As Amended Ver:July 3, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill specifies that, in the existing child pornography (also known as child sexual abuse material (CSAM)) statutes in the Penal Code, “computer-generated images” includes images generated by artificial intelligence (AI) depicting a person under the age of 18. The bill also requires the Department of Justice (DOJ) to include information about violations that involve AI-generated CSAM in its annual crime reports.

FISCAL EFFECT:

1. Cost pressures (Trial Court Trust Fund, General Fund) of an unknown amount to the courts to adjudicate charges pertaining to AI-generated CSAM. A defendant charged with a misdemeanor or felony is entitled to a jury trial and, if the defendant is indigent, legal representation provided by the government. Actual costs will depend on the number of charges filed and the amount of time needed to adjudicate each case. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The fiscal year (FY) 2024-25 state budget provides $37.3 million ongoing General Fund to backfill declining revenue to the Trial Court Trust Fund.
2. Costs (local funds, General Fund) to the counties and the California Department of Corrections and Rehabilitation (CDCR) to incarcerate people convicted of CSAM offenses pertaining to AI-generated content. Actual incarceration costs will depend on the number of convictions, the length of each sentence, and whether each sentence must be served in county jail or state prison. The average annual cost to incarcerate one person in county jail is approximately $29,000. The Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. In 2023, CDCR admitted more than 100 people to state prison whose principal offense was one of the crimes affected by this bill. If 15 additional people are admitted to CDCR for AI-generated CSAM offenses, CDCR will incur incarceration costs of almost $2 million annually for each year of their incarceration, collectively. Although county incarceration costs are generally not considered reimbursable state mandates pursuant to Proposition 30 (2012), overcrowding in county jails creates cost pressure on the General Fund because the state has historically granted new funding to counties to offset overcrowding resulting from 2011 public safety realignment.
3. Costs (General Fund) to DOJ to add information concerning AI-generated CSAM violations to its annual crime reports. DOJ reports one-time costs of approximately $200,000 to hire an external vendor to update its OpenJustice data file to meet the bill’s requirements. DOJ also anticipates an increased workload for processing arrest fingerprints since this bill expands an existing crime, resulting in ongoing annual costs to DOJ of $5,000.

According to the LAO, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of exploitation and ensure perpetrators are held responsible for their actions. As technology evolves, our laws must keep up to ensure children are safe.

1. Background. Under existing law, there are a number of statutes that criminalize possession, creation, and distribution of CSAM. Some of these offenses may be charged as either a misdemeanor or felony, while others are straight felonies. Generally, a person convicted of a CSAM-related felony will be sentenced to state prison because, unlike many other felonies, sentences for these offenses are not subject to realignment and may not be served in county jail.

This bill changes the existing CSAM statutes by specifying that a “computer-generated image” that constitutes CSAM includes an image generated through the use of AI. It is not clear whether this change expands the CSAM statutes by criminalizing new conduct or if it merely clarifies the existing definition of computer-generated image. To the extent the bill makes it easier to charge and convict people for crimes related to CSAM generated through the use of AI, it will result in the court and incarceration costs described above. The bill also requires DOJ to include in its annual, required crime reports information concerning violations of the CSAM statutes that involve materials generated through the use of artificial intelligence, resulting in additional workload to DOJ.

1. Related Legislation. AB 1831 (Berman) expands the existing CSAM statutes to include images generated by AI depicting a person under the age of 18 and data generated by AI depicting what appears to be a person under the age of 18. AB 1831 is different from SB 933 in two significant ways: AB 1831 changes statutory definitions of CSAM to include (a) digitally altered images (not just images that are wholly created by AI) and (b) artificial-intelligence generated depictions of what appears to be a person under 18 years of age (in other words, AI-generated images that do not depict real minors but are highly realistic, indistinguishable deepfakes). SB 933 does not expressly include these types of images. SB 933 is pending in the Senate Appropriations Committee.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Sb Date of Hearing: July 2, 2024

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Rebecca Bauer-Kahan, Chair

SBPCA Bill Id:SB 933

Author:(Wahab) – As Introduced Ver:January 16, 2024

SENATE VOTE: 37-0

SUBJECT: Crimes: child pornography

SYNOPSIS

As generative artificial intelligence (GenAI) becomes more effective and accessible, bad actors have increasingly been able use these technologies for nefarious purposes. Among the worst uses of GenAI is the creation of deepfake child pornography. GenAI can create child pornography in one of two ways: first, established GenAI training datasets have been found to contain child sexual abuse materials (CSAM). When a GenAI product is trained on CSAM imagery, the product becomes able to generate CSAM imagery itself. Second, GenAI is capable of combining disparate concepts in outputs; for example, a product may be trained on legal images of children and legal images of pornography, in order to output synthetic child pornography with images of children who never existed. The use of GenAI to produce deepfake child pornography is not currently illegal in California. Attempts to prohibit it elsewhere in the country have received pushback on a First Amendment basis.

This bill does not address the issue of deepfake child pornography. Its effect is simply to clarify that “computer-generated imagery” includes “artificial intelligence-generated imagery” – a clarification that appears unnecessary, given the plain meaning of the term “computer-generated.” It would not expand the Penal Code to cover AI-generated depictions of children that appear real, but are actually fake. At the same time, the bill in print does not weaken existing law. Committee amendments would add a reporting requirement for violations of the Penal Code involving AI-generated CSAM, granting the Department of Justice a valuable resource in its struggle against child pornography. A second amendment would add a definition for “artificial intelligence” into the relevant Penal Code statute.

This bill is sponsored by the California Police Chiefs Association and the Los Angeles County District Attorney’s Office. It is supported by a variety of police organizations and cities, as well as Common Sense Media, Roblox, Technet, and Snap Inc. If passed out of this Committee, this bill will next be heard by the Assembly Appropriations Committee.

SUMMARY: For the purposes of Penal Code statutes that criminalize child pornography, clarifies that computer-generated images include images generated through the use of AI.

EXISTING LAW:

1. Establishes the standard for obscenity: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (Miller v. California (1973) 414 U.S. 15, 24 [internal quotation marks and citations omitted].)
2. Defines various terms for purposes of child pornography statutes, including:
3. “Matter” means any book, magazine, newspaper, or other printed or written material, or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction, or any other article, equipment, machine, or material. “Matter” also means live or recorded telephone messages if transmitted, disseminated, or distributed as part of a commercial transaction.
4. “Obscene matter” incorporates the Miller v. California standard in 1). (Pen. Code § 311(a), (b).)
5. Makes it a crime to do any of the following:
6. Knowingly produce, develop, duplicate, distribute, or possess, in various specified formats, obscene matter depicting a minor personally engaging in or simulating sexual conduct, with the intent to provide the obscene matter to others. (Pen. Code § 311.1(a).)
7. Engage in conduct under (a) for commercial consideration. (Pen. Code § 311.2(b).)
8. Knowingly develop, duplicate, print, or exchange any representation of information, data, or image that depicts a minor engaged in an act of sexual conduct, regardless of whether the minor personally engaged in the sexual conduct or the depiction is obscene. (Pen. Code § 311.3(a).)
9. Knowingly employ, use, persuade, induce, or coerce—or in the case of parents or guardians, permit—a minor to engage or assist in posing or modeling in a performance involving sexual conduct, regardless of whether it is obscene, for a commercial purpose (Pen. Code § 311.4(b)), or not for a commercial purpose (Pen. Code § 311.4(c)).
10. Knowingly possess or control any matter, representation of information, data, or image, in various specified formats, the production of which involves the use of a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code § 311.11(a).)
11. Provides an enhanced punishment for the crimes specified above, if the minor personally engages or simulates the sexual conduct, when committed on or via government-owned computers or property. (Pen. Code § 311.12(a).)
12. Authorizes the forfeiture and destruction of matter or obscene matter depicting a minor personally engaging in or simulating sexual conduct, regardless of whether a conviction is sought or obtained. (Pen. Code § 312.3 (a), (f).)
13. Declares the duty of the Department of Justice to:
14. Collect data necessary for the work of the department from various persons and agencies, as well as from any other appropriate source.
15. Recommend the form and content of records that must be kept by those persons and agencies in order to ensure the correct reporting of data to the department.
16. Instruct those persons and agencies in the installation, maintenance, and use of those records and in the reporting of data therefrom to the department.
17. Process, tabulate, analyze, and interpret the data collected from those persons and agencies.
18. Make available to the public, through the department’s OpenJustice Web portal, information relating to criminal statistics, to be updated at least once per year, and to present at other times as the Attorney General may approve reports on special aspects of criminal statistics. (Pen. Code § 13010.)
19. Declares it to be the duty of every person or agency dealing with crimes or criminals or with delinquency or delinquents, to do all of the following when requested by the Attorney General:
20. Install and maintain records needed for the correct reporting of statistical data required by the Attorney General.
21. Report statistical data to the department at those times and in the manner that the Attorney General prescribes.
22. Give to the Attorney General, or their accredited agent, access to statistical data for the purpose of carrying out specified statutory duties. (Pen. Code § 13020.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS:

1. Artificial Intelligence (AI) and Generative Artificial Intelligence (GenAI). AI refers to the mimicking of human intelligence by artificial systems, such as computers. AI uses algorithms – sets of rules – to transform inputs into outputs. Inputs and outputs can be anything a computer can process: numbers, text, audio, video, or movement. AI that are trained on small, specific datasets in order to make recommendations and predictions are sometimes referred to as “predictive AI.” This differentiates them from GenAI, which are trained on massive datasets in order to produce detailed text and images. When Netflix suggests a TV show to a viewer, the recommendation is produced by predictive AI that has been trained on the viewing habits of Netflix users. When DALL-E generates high-resolution, lifelike images, it uses GenAI that has been trained on ~250 million text-image pairs.
2. GenAI and child pornography. GenAI can be used to generate child pornography. A joint 2023 report between the nonprofit Thorn and the Stanford Internet Observatory predicted that in 2024, technological advances would make it significantly easier to generate images that are indistinguishable from actual images – including child pornography that cannot be definitively distinguished as being photographic or computer-generated.^[1] This study pertained to images that are generated entirely from scratch, through the combination of two “concepts” that exist in a model’s training dataset. For example: child pornography might be produced by combining the concepts of “children” and “pornography”.

The Stanford Internet Observatory recently discovered that GenAI products may not need to combine disparate concepts to produce pornographic images of children; child sexual abuse materials (CSAM) are already present in many training datasets. A study identified 3226 instances of suspected child pornography in common image training datasets, many of which were later confirmed as such by third parties.^[2] These datasets were generated automatically by scraping the internet. Images containing child pornography were found to have originated from large, well-known websites such as Reddit, Twitter, Blogspot, and Wordpress, as well as mainstream adult sites such as XHamster and XVideos.

1. Child pornography in California law. In their analysis of AB 1831 (Berman, 2024), the Assembly Public Safety Committee describes how child pornography laws are structured in California:

Possession or distribution of child pornography is punishable as either a misdemeanor or felony, and in some cases, may be a state prison felony. Penal Code section 311.2, subdivision (a) criminalizes distribution or exhibition of obscene material, including child pornography, and requires a maximum sentence of one year in state prison. Additionally, Penal Code section 311.2 may be charged per image and, in some case, aggregated to increase the total sentence. (People v. Haraszewski (2012) 203 Cal.App.4th 924.) Penal Code section 311.2, subdivision (b) punishes exhibition or distribution of child pornography for commercial consideration as a felony subject to a maximum of six years in state prison. (Pen. Code, § 290, subd. (c).)

Penal Code section 311.2, subdivision (c) punishes exhibition or distribution of obscene matter to another person 18 and over knowing the material depicts a minor engaged in sexual conduct, may be sentenced to a maximum of 1 year in state prison. Penal Code section 311.2 subdivision (d) punishes distribution of obscene matter, including child pornography, to a person under the age of 18, by up to one year in county jail, or three years in state prison.

Penal Code section 311.3 criminalizes “sexual exploitation of a child” meaning knowingly developing or printing child pornography, as specified, and may be punished by up to one year in the county jail. (Pen. Code, § 311.3, subd. (d).)

Penal Code section 311.4, subdivision (a) punishes knowingly employing a minor to distribute obscenity or pornography, as specified, and is subject to a punishment of up to one year in state prison. Penal Code section 311.11, subdivision (a) criminalizes possession of child pornography which is mostly punishable as a felony.

1. What this bill would do. This bill would, for the purposes of Penal Code statutes criminalizing child pornography, clarify that computer-generated images include images generated through the use of AI.
2. Author’s statement:

Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of exploitation and ensure perpetrators are held responsible for their actions. As technology evolves, our laws must keep up to ensure children are safe.

1. Analysis. The version of this bill that appears in print does only one thing: it clarifies that “computer-generated images” include “images generated through the use of artificial intelligence.” However, the bill does not provide a definition of “artificial intelligence” that expands the phrase “computer-generated” beyond its common definition. As “computer-generated” manifestly includes images “generated through the use of artificial intelligence” (because all advanced AI currently runs on computers), the version of the bill in print does not actually expand existing protections for minors.

Furthermore, the addition of the phrase “generated through the use of artificial intelligence” appears to be inserted incorrectly into the relevant Penal Code statutes. Section 311 of the Penal Code is unpleasant to read – both in terms of its content, and in terms of its structure – but its various statutes tend to break down as follows:

“Every person who knowingly [possesses or distributes] any [physical or digital form of media used to store pre-existing content] that incorporates [the original form of the generated content] with intent to distribute the matter, and knowing that the matter [depicts a minor engaging in sexual conduct] shall be punished by [penalty].”

When AI is used to generate child pornography, the AI-generated content is the “original form of the generated content” referenced above. This bill instead asserts that AI-generated content is the “physical or digital form of media used to store pre-existing content”:

Every person who knowingly sends . . . any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image, including an image generated through the use of artificial intelligence, that contains or incorporates in any manner…

AB 1831 (Berman, 2024) amends the same sections of code as this bill, with the same intended effect, but correctly asserts that AI-generated content is the “original form of the generated content”:

…contains or incorporates in any manner, any film, filmstrip, or any digitally altered or artificial-intelligence-generated matter, with intent to distribute…

The current bill has one other major issue: Section 311 of the Penal Code only covers materials depicting “a person under the age of 18 years personally engaging in or personally simulating sexual conduct” – in other words, it only covers depictions of real minors. If this bill were amended as described above, it would still only cover AI-generated depictions of real minors. It is not immediately obvious whether this would meaningfully expand existing law. Consider three scenarios involving a known use of AI, face-swapping:

1. The face of an adult is swapped onto the body of another adult engaging in sexual conduct. This would not result in a violation of these statutes, as the portrayed individual is not a minor.
2. The face of a minor is swapped onto the body of another minor engaging in sexual conduct. This would result in a violation of these statutes under existing law, as the template minor is “a person under the age of 18 personally engaging in or personally simulating sexual conduct.”
3. The face of a minor is swapped onto a body of an adult engaging in sexual conduct. This is the scenario most likely to be captured by this bill, were it to be amended as described above – but even then, it is not clear that the face-swapped minor would be “personally” engaging in sexual conduct.

Face-swapping aside, this bill fails entirely to cover another pressing issue: the de novo creation of child pornography involving fake children through the use of AI. In their letter of support for AB 1831, the California District Attorneys Association explains why the de novo creation of child pornography is a critical issue:

The threat posed by AI generated CSAM is real now and emerging quickly as a serious impediment to protecting our children. Law enforcement officers in California have already encountered instances of people in possession of AI-generated CSAM that could not be prosecuted due to the deficiency in current law.

In 2020 investigators in Ventura County investigating the possession and transfer of CSAM amongst three individuals determined that one of the suspects was using his computer to create CSAM images. He confessed to creating and distributing these made-to-order sexually explicit images of children for financial gain. However, despite the obscene nature of the images and the fact that they appeared to depict young children, he could not be prosecuted.

AB 1831 deals with this issue by expanding the relevant Penal Code statues to include “digitally altered or artificial-intelligence-generated data depicting what appears to be a person under 18 years of age”. The current bill includes no such language.

Given that this bill does not actually change the scope of existing law, it is not actively harmful. It is also completely consistent with AB 1831 – no issues would emerge as a result of both becoming law. Understanding this, two amendments are proposed by this Committee. One simply adds a definition for “artificial intelligence” into the bill. The other creates a reporting requirement for violations involving AI-generated materials, in order that California’s legal system might better understand the scope of this issue.

1. Committee amendments. Two committee amendments are proposed for this bill. The first would provide a definition for “artificial intelligence” sourced from AB 2885 (Bauer-Kahan, 2024):

SEC. 9. Section 311 of the Penal code is amended to read:

311. As used in this chapter, the following definitions apply:

(a) “Artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

The second would create a reporting requirement for violations of Section 311 of the Penal Code that involve AI-generated materials. This requirement would be consistent with existing reporting requirements, laid out in the EXISTING LAW section of this analysis:

SEC. 8. Section 13012.9 of the Penal Code is added to read:

13012.9. (a) The annual report published by the department pursuant to Section 13010 shall include information concerning violations of Chapter 7.5 (commencing with Section 311) of Title 9 of Part 1 of this code that involve materials generated through the use of artificial intelligence.

(b) For purposes of this section, “artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

1. Related legislation. AB 1831 (Berman, 2024) amends the same statutes as this bill, and would expand laws against child pornography to include AI-generated matter. This bill is currently pending in Senate Appropriations Committee.

AB 1856 (Ta, 2024) would provide that an individual who intentionally distributes nonconsensual deepfake pornography is subject to a misdemeanor. This bill is currently pending in Senate Appropriations Committee.

SB 926 (Wahab, 2024) would provide that an individual who intentionally distributes nonconsensual deepfake pornography is subject to a misdemeanor. This bill is currently pending in this Committee.

ARGUMENTS IN SUPPORT:

The California District Attorneys Association writes:

CSAM created using AI is harmful in many of the same ways as CSAM which depicts an actual child. Persons who consume artificially created CSAM will become desensitized to its content, just as individuals who consume CSAM of actual children. Desensitization, in turn, can lead the individual to seek out more graphic content and eventually may lead to physical assaultive behaviors against real children. Importantly, the very creation of CSAM by artificial intelligence relies on existing images of CSAM depicting real children, revictimizing thousands of exploited children. Criminalizing CSAM, even when it is entirely created by artificial intelligence, makes children safer.

TechNet and the California Chamber of Commerce writes:

SB 933 adds “image generated through the use of artificial intelligence” to existing statutes that criminalize the creation, possession, and distribution of CSAM. The horrific exploitation of children that CSAM perpetuates exists regardless of how CSAM is produced. We think this bill is a reasonable and necessary update to include what is clearly an abusive and criminal use of this new technology.

REGISTERED SUPPORT / OPPOSITION:

Support

California Police Chiefs Association (co-sponsor) Los Angeles County District Attorney's Office (co-sponsor) Arcadia Police Officers' Association
Burbank Police Officers' Association
California Chamber of Commerce
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Children’s Advocacy Institute
City of San Jose
City of Santa Clara
Claremont Police Officers Association
Common Sense
Common Sense Media
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Junior Leagues of California State Public Affairs Committee
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Perk Advocacy
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Roblox, INC.
Sacramento County Sheriff Jim Cooper
Santa Ana Police Officers Association
SNAP INC.
Technet
Upland Police Officers Association

Opposition

None on file.

Analysis Prepared by: Slater Sharp / P. & C.P. / (916) 319-2200

1. David Thiel, Melissa Stroebel and Rebecca Portnoff, “Generative ML and CSAM: Implications and Mitigations,” Thorn and Stanford Internet Observatory, Jun. 24, 2023. ↑

2. David Thiel, “Identifying and Eliminating CSAM in Generative ML Training Data and Models,” Stanford Internet Observatory, Dec. 23, 2023. ↑

Date of Hearing: June 18, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 933

Author:(Wahab) – As Introduced Ver:January 16, 2024

SUMMARY: Specifies that computer-generated images, for purposes of statutes that criminalize child pornography, include images generated through the use of artificial intelligence (AI).

EXISTING LAW:

1. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with the intent to distribute, exhibit or exchange with others any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined. (Pen. Code, § 311.1, subd. (a).)
   
2. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (b).)
   
3. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with a person 18 years of age or older, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (c).)
   
4. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (d).)
   
5. Makes a person, except as provided, guilty of sexual exploitation of a child if the person knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct, as defined. (Pen. Code, § 311.3, subd. (a).)
   
6. Prohibits, except as provided, a person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which they should reasonably know that the person is a minor, hires, employs, or uses the minor to participate in the production, distribution or exhibition of child pornography in violation of Penal Code section 311.2. (Pen. Code, § 311.4, subd. (a).)
   
7. Prohibits, except as provided, a person who, knows that a person is a minor under the age of 18 years, or who should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving sexual conduct by a minor for commercial purposes. (Pen. Code, § 311.4, subd. (b).)
   
8. Prohibits, except as provided, a person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals. (Pen. Code, § 311.4, subd. (c).)
   
9. Prohibits, except as provided, a person from knowingly possessing or controlling any matter, representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)
   
10. States, except as provided, that any city, county, city and county, or state official or agency in possession of matter that depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct is subject to forfeiture. (Pen. Code, § 312.3, subd. (a).)
    
11. Defines “sexual conduct” as:
    
    1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals.
       
    2. Penetration of the vagina or rectum by any object.
       
    3. Masturbation for the purpose of sexual stimulation of the viewer.
       
    4. Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.
       
    5. Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer.
       
    6. Defecation or urination for the purpose of sexual stimulation of the viewer. (Pen. Code, § 311.3, subd. (b)(1-6); Pen. Code, § 311.4, subd. (d).)
       
12. Defines “matter” to mean “any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines, or materials. “Matter” also means any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated-image that contains or incorporates in any manner any film or filmstrip. (Pen. Code, § 312.3, subd. (h).)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see, and users have quickly found workarounds to previously established safeguards to protect children. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of exploitation and violations, and ensure perpetrators are held responsible and accountable for their actions. As technology evolves, our laws must keep up to ensure children are safe.”
   
2. Child Pornography: Possession or distribution of child pornography is punishable as either a misdemeanor or felony, and in some cases, may be a state prison felony. Penal Code section 311.2, subdivision (a) criminalizes distribution or exhibition of obscene material, including child pornography, and requires a maximum sentence of one year in state prison. Additionally, Penal Code section 311.2 may be charged per image and, in some case, aggregated to increase the total sentence. (People v. Haraszewski (2012) 203 Cal.App.4th 924.) Penal Code section 311.2, subdivision (b) punishes exhibition or distribution of child pornography for commercial consideration as a felony subject to a maximum of six years in state prison. (Pen. Code, § 290, subd. (c).)

Penal Code section 311.2, subdivision (c) punishes exhibition or distribution of obscene matter to another person 18 and over knowing the material depicts a minor engaged in sexual conduct, may be sentenced to a maximum of 1 year in state prison. Penal Code section 311.2 subdivision (d) punishes distribution of obscene matter, including child pornography, to a person under the age of 18, by up to one year in county jail, or three years in state prison.

Penal Code section 311.3 criminalizes “sexual exploitation of a child,” which is knowingly developing or printing child pornography, as specified, and may be punished by up to one year in the county jail. (Pen. Code, § 311.3, subd. (d).)

Penal Code section 311.4, subdivision (a) punishes knowingly employing a minor to distribute obscenity or pornography, as specified, and is subject to a punishment of up to one year in state prison. Penal Code section 311.11, subdivision (a) criminalizes possession of child pornography which is mostly punishable as a felony. Penalties for violating existing laws on child pornography range from one-year county jail misdemeanors to state-prison felonies.

Until 1994, child pornography was defined to mean depictions of children under the age of 14 engaged in a sexual conduct. In 1994, child pornography was defined as depicting any person under the age of 18 years. (AB 927 (Honeycutt), Ch. 55, Stats. 1994.)

However, when the age standard for child pornography was set to include images of any minor, the definition of “sexual conduct” did not change. That definition is broad enough to include not only graphic depictions of sexual intercourse, oral copulation and sodomy, but also what could be characterized sexually oriented posing. Thus, the range of prohibited depictions makes it difficult to assess exactly what a “child pornography” conviction means in any particular instance since child pornography can range from the most graphic depiction of the rape of a prepubescent child possessed by an adult to a nude image of a 17-year old possessed by another minor.

1. First Amendment: The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” (U.S. Const, Amend. I, Section 1.) This fundamental right is applicable to the states through the due process clause of the Fourteenth Amendment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 133-134, citing Gitlow v. People of New York (1925) 268 U.S. 652, 666.) The California Constitution also protects free speech. (Cal. Const. Art. I, § 2.) “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Ashcroft v. American Civil Liberties Union (2002) 535 U.S. 564, 573.) Speech cannot be prohibited merely because someone justifiably finds it offensive and objectionable. (See e.g. Cohen v. California, (1971) 403 U.S. 15, 22; Virginia v Black (2003) 538 U.S. 343, 358.) Legislation that regulates the content of protected speech is subject to strict scrutiny, which requires state action to be narrowly tailored to address a compelling government interest. (Reed v. Town of Gilbert, Ariz. (2015) 135 S.Ct. 2218, 2226.)

While these guarantees are stated in broad terms, “the right to free speech is not absolute.” (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708; and Stromberg v. California (1931) 283 U.S. 359.) Courts have recognized that there are categories of speech that are not protected under the First Amendment, such as soliciting a bribe (Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a terrorist threat (Pen. Code, § 422). Obscenity and child pornography have also been held to fall outside the protections of the First Amendment. (Roth v. United States (1957) 354 U.S. 476 and New York v. Ferber (1982) 458 U.S. 747.)

Miller v. California (1973) 413 U.S. 15, 24 held “obscene material is unprotected by the First Amendment.”

“There are inherent dangers in undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, the permissible scope of such regulation is confined to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. (Emphasis added.)

While pornography that is not obscene is protected speech under the First Amendment, child pornography is a different matter. The Supreme Court has recognized that a state may legitimately sanction activities which amount to harmful conduct rather than "pure speech," particularly when the conduct in question involves the use of children to make sexual material. (New York v. Ferber (1982) 458 U.S. 747, 770-771.) The “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” (Id. at p. 757.) The use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 757; Osborne v. Ohio (1990) 495 U.S. 103, 109.) Thus, “pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California.” (Free Speech Coalition, supra, 535 U.S. at p. 240, citing Ferber, supra, 458 U.S. at p. 764.)

This bill adds images generated by AI to the existing statutes that criminalize child pornography and obscene matter. Specifically, these statutes criminalize the possession, distribution, exchange or production of any matter, representation of information, data, or image, including but not limited to a list of medium, such as computer-generated images, that may be used to distribute or exhibit matter that contains or incorporates materials involving the use of a person under the age of 18 years old personally engaging in or simulating sexual conduct. This bill specifies that computer-generated images include images generated by AI.

While AI encompasses a broad range of images which may be real or fabricated, when applied in the context of existing child pornography statutes, the image must be of a real minor in order to pass constitutional scrutiny. In Free Speech Coalition, supra, the U.S. Supreme Court declared unconstitutional a federal law that defined child pornography to include visual depictions that appear to be of a minor, even if no minor was actually used. (535 U.S. 234.) The government argued that while real children were not harmed in the production of the materials, the materials could still lead to abuse of real children by pedophiles who “whet their own sexual appetites” with such materials. (Id. at p. 241.) Additionally, the government argued that as imaging technology improves, it becomes more difficult to prove that a particular picture was produced using actual children. (Id. at 242.) The Court found these arguments were insufficient reasons to treat virtual child pornography the same as child pornography made with a real minor. In Ferber, supra, the Court found that the production and distribution of child pornography are “intrinsically related” to the sexual abuse of the child because the material acts as a permanent record of the child’s abuse and the circulation of the material would harm the child’s reputation and emotional well-being. (Id. at p. 249.) The Court distinguished the harm in virtual child pornography created without using a real minor because it is not a recording of a criminal act nor is there continuing harm on a child victim by the distribution of the materials. (Id. at p. 250.)

The Free Speech Coalition ruling, albeit in dicta, did comment on the difference between pure virtual images versus morphing images where innocent pictures of real children are altered so that the children appear to be engaged in sexual activity. “Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” (Id. at p. 242.)

In U.S. v. Hotaling (2002), 599 F.Supp.2d 306, the Northern District Court of New York, relying on dicta from the Free Speech Coalition case, as well as other district court and U.S. appellate court cases, held that criminalizing morphed images of child pornography created without the filming or photography of actual sexual conduct on the part of the identifiable minor does not violate the First Amendment. (Id. at p. 321.) “An image of an identifiable, real child involving sadistic conduct -- even if manipulated to portray conduct that was not actually inflicted on that child -- is still harmful, and the amount of emotional harm inflicted will likely correspond to the severity of the conduct depicted.” (Id. at p. 320, citing U.S. v. Hoey (1st Cir. 2007) 508 F.3d 687, 693.) Hotaling also cited similar reasoning which was used by another appellate court in holding that an image in which the face of a known child was transposed onto the naked body of an unidentified child in a lascivious pose constituted child pornography outside the scope of the First Amendment protections. (Id. at p. 319, citing U.S. v. Bach (8th Cir. 2005) 400 F.3d 622.)

In contrast, a California appellate court held that the possession of morphed images, while morally repugnant, does not fall outside the protection of the First Amendment. (People v. Gerber (2011) 196 Cal.App.4th 368, 386.) The court looked at Legislative history of previously enacted statutes that contain the same language -- “personally engaging in or personally simulating sexual conduct” -- and found that it is “clear that the purpose of that legislation was to prevent exploitation of children used to make child pornography.” (Id. at p. 380, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1580 (1977-1978 Reg. Sess.) as amended Aug. 18, 1977, p. 1.) The court also noted that at the time that the Legislature enacted the crime of possession of child pornography, the term “child pornography” had a particular meaning under Ferber, supra. Specifically, not only must the offender have known that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, production of the matter must have “involve[d] the use of a person under the age of 18 years…” (Id. at p. 382, citing Ferber, supra, 458 U.S. 747, and Cal. Pen. Code, § 311.11.)

Thus, Gerber held that “it would appear that a real child must have been used in the production and actually engaged in or simulated the sexual conduct depicted.” (Id. at p. 382.) The court acknowledged the dicta in Free Speech Coalition on morphed images, however, held that such altered materials are closer to virtual child pornography than to real child pornography because the act does not necessarily involve sexual exploitation of an actual child. (Id. at p. 386.) Relying on the rationales laid out in both Ferber, supra and Free Speech Coalition, the court emphasized that “Ferber’s judgment about child pornography was based upon how it was made, not on what it communicated and Ferber reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” (Id. at p. 385, citing Free Speech Coalition, supra, 535 U.S. at pp. 250-251.)

As stated above, this bill would includes images generated by the use of AI to computer-generated images in existing statutes that prohibit obscene matter and child pornography. In a literal sense, an AI image is a type of computer-generated image so this bill could be interpreted to merely clarify existing law. To the extent that this bill may be interpreted to expand existing law to images not explicitly covered, such as applying to morphed images of child pornography, case law is not clear on where the constitutional line should be drawn. Whether such expanded application of this bill passes First Amendment scrutiny is ultimately up to the courts.

1. Argument in Support: According to the California Police Chiefs Association, the bill’s sponsor, “According to the Stanford Internet Observatory's 2023 report there are thousands of explicit and abusive images of children hidden within popular AI image-generators. These images make it easier to create explicit and abusive content. Current law does not expressly prohibit the possession or distribution of AI-generated explicit images of actual children, and law enforcement has experienced difficulties tying possession and distribution of these images to existing criminal statutes.
   
   “SB 933 is addressing the pressing issue of AI-generated explicit, abusive images of children, clarifying the law to provide effective safeguards. The bill's solutions are straightforward and impactful, aiming to regulate AI-generated images, create a more secure digital environment for children, and protect children and teens.”
   
2. Argument in Opposition: None submitted.
   
3. Related Legislation:
   
   1. AB 1831 (Berman), would add to the definition of “obscene matter” and “matter,” any “matter generated through AI” as it pertains to images of persons under the age of 18 engaged in sexual conduct, as specified.
      
   2. AB 1872 (Sanchez) expands the definition of “fear” in the extortion statute to include any threat to post, distribute, or create AI-generated images or videos of another. AB 1872 is being heard in this committee today.
      
   3. AB 1873 (Sanchez) creates a new crime for knowingly developing, duplicating, printing, or exchanging any representation of information, data, or images generated using artificial intelligence (AI), that depicts a person under the age of 18 years engaged in any sexual conduct, as specified.
      
4. Prior Legislation: SB 1128 (Alquist), Chapter 337, Statutes of 2006, stated, among other numerous changes to the distribution of obscene material, that any person who knowingly promotes, employs or uses a minor who the person knows or reasonably should have known is under the age of 18 or engages in or assists others to engage in either posing or modeling involving sexual conduct for commercial purposes shall punished as a felony punishable by a term of three, six or eight years in state prison.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association
Burbank Police Officers' Association
Calchamber
California Baptist for Biblical Values
California Chamber of Commerce
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Chief Probation Officers' of California (CPOC)
Child Abuse Prevention Center and Its Affiliates Safe Kids California, Prevent Child Abuse California and The California Family Resource Association; the
Children's Advocacy Institute
Childrens Advocacy Institute
Claremont Police Officers Association
Common Sense
Common Sense Media
Concerned Women for America
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Junior Leagues of California State Public Affairs Committee
Los Angeles County District Attorney's Office
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Our Duty
Palos Verdes Police Officers Association
Perk Advocacy
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Real Impact.
Riverside Police Officers Association
Riverside Sheriffs' Association
Roblox Corporation
Sacramento County Sheriff Jim Cooper
Sag Aftra
Sag-aftra, Afl-cio
Santa Ana Police Officers Association
SNAP INC.
Technet
Upland Police Officers Association

Opposition

None

Analysis Prepared by: Andrew Ironside / PUB. S. / (916) 319-3744

 CONSENT  

Bill No: SB 933

Author: Wahab (D) and Ochoa Bogh (R), et al.

Introduced: 1/16/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 3/19/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Crimes: child pornography

SOURCE: Author

DIGEST:

This bill specifies that computer-generated images, for purposes of statutes that criminalize child pornography, include images generated through the use of artificial intelligence (AI).

ANALYSIS:

Existing law:

1. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with the intent to distribute, exhibit or exchange with others any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined. (Pen. Code, § 311.1, subd. (a).)
2. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (b).)
3. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with a person 18 years of age or older, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (c).)
4. Prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (d).)
5. Makes a person, except as provided, guilty of sexual exploitation of a child if the person knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct, as defined. (Pen. Code, § 311.3, subd. (a).)
6. Prohibits, except as provided, a person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which they should reasonably know that the person is a minor, hires, employs, or uses the minor to participate in the production, distribution or exhibition of child pornography in violation of Penal Code section 311.2. (Pen. Code, § 311.4, subd. (a).)
7. Prohibits, except as provided, a person who, knows that a person is a minor under the age of 18 years, or who should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving sexual conduct by a minor for commercial purposes. (Pen. Code, § 311.4, subd. (b).)
8. Prohibits, except as provided, a person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals. (Pen. Code, § 311.4, subd. (c).)
9. Prohibits, except as provided, a person from knowingly possessing or controlling any matter, representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)
10. Defines “sexual conduct” to mean “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (Pen. Code, § 311.4, subd. (d)(1).)
11. Defines “matter” to mean “any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines, or materials. “Matter” also means any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated-image that contains or incorporates in any manner any film or filmstrip. (Pen. Code, § 312.3, subd. (h).)

This bill includes an image generated through the use of AI as a computer-generated image in the above statutes.

Background

This bill adds images generated by AI to the existing statutes that criminalize child pornography and obscene matter. Specifically, these statutes criminalize the possession, distribution, exchange or production of any matter, representation of information, data, or image, including but not limited to a list of medium, such as computer-generated images, that may be used to distribute or exhibit matter that contains or incorporates materials involving the use of a person under the age of 18 years old personally engaging in or simulating sexual conduct. This bill specifies that computer-generated images include images generated by AI.

While AI encompasses a broad range of images which may be real or fabricated, when applied in the context of existing child pornography statutes, the image must be of a real minor in order to pass constitutional scrutiny. In Free Speech Coalition, supra, the U.S. Supreme Court declared unconstitutional a federal law that defined child pornography to include visual depictions that appear to be of a minor, even if no minor was actually used. (535 U.S. 234.) The government argued that while real children were not harmed in the production of the materials, the materials could still lead to abuse of real children by pedophiles who “whet their own sexual appetites” with such materials. (Id. at p. 241.) Additionally, the government argued that as imaging technology improves, it becomes more difficult to prove that a particular picture was produced using actual children. (Id. at 242.) The Court found these arguments were insufficient reasons to treat virtual child pornography the same as child pornography made with a real minor. In Ferber, supra, the Court found that the production and distribution of child pornography are “intrinsically related” to the sexual abuse of the child because the material acts as a permanent record of the child’s abuse and the circulation of the material would harm the child’s reputation and emotional well-being. (Id. at p. 249.) The Court distinguished the harm in virtual child pornography created without using a real minor because it is not a recording of a criminal act nor is there continuing harm on a child victim by the distribution of the materials. (Id. at p. 250.)

The Free Speech Coalition ruling, albeit in dicta, did comment on the difference between pure virtual images versus morphing images where innocent pictures of real children are altered so that the children appear to be engaged in sexual activity. “Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” (Id. at p. 242.)

In U.S. v. Hotaling (2002), 599 F.Supp.2d 306, the Northern District Court of New York, relying on dicta from the Free Speech Coalition case, as well as other district court and U.S. appellate court cases, held that criminalizing morphed images of child pornography created without the filming or photography of actual sexual conduct on the part of the identifiable minor does not violate the First Amendment. (Id. at p. 321.) “An image of an identifiable, real child involving sadistic conduct -- even if manipulated to portray conduct that was not actually inflicted on that child -- is still harmful, and the amount of emotional harm inflicted will likely correspond to the severity of the conduct depicted.” (Id. at p. 320, citing U.S. v. Hoey (1st Cir. 2007) 508 F.3d 687, 693.) Hotaling also cited similar reasoning which was used by another appellate court in holding that an image in which the face of a known child was transposed onto the naked body of an unidentified child in a lascivious pose constituted child pornography outside the scope of the First Amendment protections. (Id. at p. 319, citing U.S. v. Bach (8th Cir. 2005) 400 F.3d 622.)

In contrast, a California appellate court held that the possession of morphed images, while morally repugnant, does not fall outside the protection of the First Amendment. (People v. Gerber (2011) 196 Cal.App.4th 368, 386.) The court looked at Legislative history of previously enacted statutes that contain the same language -- “personally engaging in or personally simulating sexual conduct” -- and found that it is “clear that the purpose of that legislation was to prevent exploitation of children used to make child pornography.” (Id. at p. 380, citing Sen. Com. on Judiciary, Analysis of Assembly. Bill No. 1580 (1977-1978 Reg. Sess.) as amended Aug. 18, 1977, p. 1.) The court also noted that at the time that the Legislature enacted the crime of possession of child pornography, the term “child pornography” had a particular meaning under Ferber, supra. Specifically, not only must the offender have known that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, production of the matter must have “involve[d] the use of a person under the age of 18 years…” (Id. at p. 382, citing Ferber, supra, 458 U.S. 747, and Cal. Pen. Code, § 311.11.)

Thus, Gerber held that “it would appear that a real child must have been used in the production and actually engaged in or simulated the sexual conduct depicted.” (Id. at p. 382.) The court acknowledged the dicta in Free Speech Coalition on morphed images, however, held that such altered materials are closer to virtual child pornography than to real child pornography because the act does not necessarily involve sexual exploitation of an actual child. (Id. at p. 386.) Relying on the rationales laid out in both Ferber, supra and Free Speech Coalition, the court emphasized that “Ferber’s judgment about child pornography was based upon how it was made, not on what it communicated and Ferber reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” (Id. at p. 385, citing Free Speech Coalition, supra, 535 U.S. at pp. 250-251.)

As stated above, this bill includes images generated by the use of AI to computer-generated images in existing statutes that prohibit obscene matter and child pornography. In a literal sense, an AI image is a type of computer-generated image so this bill could be interpreted to merely clarify existing law. To the extent that this bill may be interpreted to expand existing law to images not explicitly covered, such as applying to morphed images of child pornography, case law is not clear on where the constitutional line should be drawn. Whether such expanded application of this bill passes First Amendment scrutiny is ultimately up to the courts.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 5/6/24)

Arcadia Police Officers' Association
Burbank Police Officers' Association
CalChamber
California Baptist for Biblical Values
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Chief Probation Officers' of California (CPOC)
Child Abuse Prevention Center and Its Affiliates Safe Kids California, Prevent Child Abuse California and The California Family Resource Association
Children's Advocacy Institute
Claremont Police Officers Association
Common Sense
Common Sense Media
Concerned Women for America
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles County District Attorney's Office
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Our Duty
Palos Verdes Police Officers Association
Perk Advocacy
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Real Impact.
Riverside Police Officers Association
Riverside Sheriffs' Association
Roblox Corporation
Sag-Aftra, AFL-CIO
Santa Ana Police Officers Association
SNAP INC.
TechNet
Upland Police Officers Association

OPPOSITION: (Verified 5/6/24)

None received

ARGUMENTS IN SUPPORT: According to Concerned Women for America:

Child pornography is a root cause of sexual child abuse and child sex trafficking. With AI technology, pornography filmmakers can create new and ever-increasing pictures, images, and videos of children engaging in or simulating sexual acts. Such images dehumanize children and transforms them into objects for abuse. (Fn. omitted.)

It is well documented that viewing pornography, of any type, eventually ceases to satisfy the viewer and increases the likelihood of engaging in the fantasized behavior. Child pornography normalizes and legitimizes the sexual interest in minors. SB 933 takes a bold step in protecting children from artificial intelligent software or computer-generated depictions of children being sexually exploited.

Prepared by: Stella Choe / PUB. S. /

5/7/24 12:01:28

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 933 Hearing Date: March 19, 2024

Subject: Crimes: child pornography

HISTORY

Source: Author

Prior Legislation: SB 145 (Pavley), Ch. 777, Stats. 2013

SB 203 (Harman), held Assem. Approps., 2010

AB 442 (Parra), held Sen. Public Safety, 2007

AB 235 (Tran), held Sen. Public Safety, 2007

SB 1238 (Battin), held Sen. Public Safety, 2006

SB 588 (Runner), failed Sen. Public Safety, 2005

SB 1499 (Liu) Ch. 751, Stats. 2004

AB 39 (Runner), failed Assem. Public Safety, 2003

AB 1012 (Corbett), Ch. 559, Stats. 2001

SB 927 (Honeycutt), Ch. 55, Stats. 1994

AB 2701 (Costa), Ch. 874, Stats. 1994

AB 2233 (Polanco), Ch. 1180, Stats. 1989

Support: Arcadia Police Officers' Association; Burbank Police Officers' Association; California Baptist for Biblical Values; California Coalition of School Safety Professionals; California District Attorneys Association; California Narcotic Officers' Association; California Reserve Peace Officers Association; California State Sheriffs’ Association; Children’s Advocacy Institute; Claremont Police Officers Association; Common Sense; Concerned Women for America; Corona Police Officers Association; Culver City Police Officers' Association; Deputy Sheriffs' Association of Monterey County; Fullerton Police Officers' Association; Los Angeles School Police Management Association; Los Angeles School Police Officers Association; Murrieta Police Officers' Association; Newport Beach Police Association; Novato Police Officers Association; Palos Verdes Police Officers Association; Placer County Deputy Sheriffs' Association; Pomona Police Officers' Association; Real Impact; Riverside Police Officers Association; Riverside Sheriffs' Association; Roblox Corporation; SAG-AFTRA, AFL-CIO; Santa Ana Police Officers Association; Upland Police Officers Association

Opposition: None known

PURPOSE

The purpose of this bill is to specify that computer-generated images, for purposes of statutes that criminalize child pornography, include images generated through the use of artificial intelligence (AI).

Existing law prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with the intent to distribute, exhibit or exchange with others any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct, as defined. (Pen. Code, § 311.1, subd. (a).)

Existing law prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with others for commercial consideration, any obscene matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (b).)

Existing law prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images that contains or incorporates in any manner, any film or filmstrip, with intent to distribute, exhibit or exchange with a person 18 years of age or older, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (c).)

Existing law prohibits, except as provided, the act of knowingly sending or bringing into this state for sale or distribution, or possessing, preparing, publishing, producing, developing, duplicating, or printing in this state any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, with intent to distribute or exhibit to, or to exchange with, a person under 18 years of age, any matter, knowing that the matter depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct. (Pen. Code, § 311.2, subd. (d).)

Existing law makes a person, except as provided, guilty of sexual exploitation of a child if the person knowingly develops, duplicates, prints, or exchanges any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct, as defined. (Pen. Code, § 311.3, subd. (a).)

Existing law prohibits, except as provided, a person who, with knowledge that a person is a minor, or who, while in possession of any facts on the basis of which they should reasonably know that the person is a minor, hires, employs, or uses the minor to participate in the production, distribution or exhibition of child pornography in violation of Penal Code section 311.2. (Pen. Code, § 311.4, subd. (a).)

Existing law prohibits, except as provided, a person who, knows that a person is a minor under the age of 18 years, or who should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving sexual conduct by a minor for commercial purposes. (Pen. Code, § 311.4, subd. (b).)

Existing law prohibits, except as provided, a person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she they should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces, or coerces a minor under the age of 18 years to engage in either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals. (Pen. Code, § 311.4, subd. (c).)

Existing law prohibits, except as provided, a person from knowingly possessing or controlling any matter, representation of information, data, or image, including among a non-exhaustive list of types of medium, computer-generated images, that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under 18 years of age, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)

Existing law states, except as provided, that any city, county, city and county, or state official or agency in possession of matter that depicts a person under the age of 18 years personally engaging in or personally simulating sexual conduct is subject to forfeiture. (Pen. Code, § 312.3, subd. (a).)

Existing law defines “sexual conduct” to mean “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (Pen. Code, § 311.4, subd. (d)(1).)

Existing law defines “matter” to mean “any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation, or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines, or materials. “Matter” also means any representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated-image that contains or incorporates in any manner any film or filmstrip. (Pen. Code, § 312.3, subd. (h).)

This bill includes an image generated through the use of AI as a computer-generated image in the above statutes.

COMMENTS

1. Need for This Bill

According to the author of this bill:

Our laws need to keep up with technology. New artificial intelligence (AI) tools allow anyone to create convincing images by typing a short description of what they want to see, and users have quickly found workarounds to previously established safeguards to protect children. The landscape of possibilities presented by artificial intelligence is changing rapidly. We must protect children from new forms of violations and ensure perpetrators are held responsible and accountable for their actions. As technology evolves, our laws must keep up to ensure children are safe

1. Background: Child Pornography

Existing law criminalizes any person who distributes, exhibits, possesses, prepares, publishes, produces, develops, duplicates, or prints any matter that depicts a person under 18 years of age personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11.) Sexual conduct, for these purposes, is defined as “any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct.” (Pen. Code, § 311.4, subd. (d)(1).) Penalties for violating existing laws on child pornography range from one-year county jail misdemeanors to state-prison felonies.

Until 1994, child pornography was defined to mean depictions of children under the age of 14 engaged in a sexual conduct. In 1994, child pornography was defined as depicting any person under the age of 18 years. (AB 927 (Honeycutt), Ch. 55, Stats. 1994.)

However, when the age standard for child pornography was set to include images of any minor, the definition of “sexual conduct” did not change. That definition is broad enough to include not only graphic depictions of sexual intercourse, oral copulation and sodomy, but also what could be characterized sexually oriented posing. Thus, the range of prohibited depictions makes it difficult to assess exactly what a “child pornography” conviction means in any particular instance since child pornography can range from the most graphic depiction of the rape of a prepubescent child possessed by an adult to a nude image of a 17-year old possessed by another minor.

1. First Amendment Considerations

The First Amendment to the United States Constitution states: “Congress shall make no law . . . abridging the freedom of speech . . . .” This fundamental right is applicable to the states through the due process clause of the Fourteenth Amendment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 133-134, citing Gitlow v. People of New York (1925) 268 U.S. 652, 666.) Article I, section 2, subdivision (a) of the California Constitution provides that: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." It is a fundamental tenant of First Amendment law that speech cannot be prohibited merely because someone justifiably finds it offensive and objectionable. (See e.g. Cohen v. California, (1971) 403 U.S. 15, 22; Virginia v Black (2003) 538 U.S. 343, 358.)

Speech can come in all forms of expression, including but not limited to, words both written and spoken, actions, symbols, clothing, art, donations, images, movies, videos, and online posts.

While these guarantees are stated in broad terms, “the right to free speech is not absolute.” (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708; and Stromberg v. California (1931) 283 U.S. 359.) Courts have recognized that there are categories of speech that are not protected under the First Amendment, such as soliciting a bribe (Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a terrorist threat (Pen. Code, § 422). As discussed further below, obscenity and child pornography have also been held to fall outside the protections of the First Amendment. (Roth v. United States (1957) 354 U.S. 476 and New York v. Ferber (1982) 458 U.S. 747.)

• 1. Indecent Materials, Obscenity, and Child Pornography

Indecent speech, which can include pornography and other sexually explicit speech, is not inherently obscene and thus is generally protected speech under the First Amendment. (Sable Communications of Cal. v. FCC (1989) 492 U.S. 115, 126.) The U.S. Supreme Court has laid out the following test to determine whether speech is obscene requires “(a) whether the average person, applying contemporary community standards, not national standards, would find that the work appealed to the prurient interest, (b) whether the work depicted sexual conduct defined by state law, and (3) whether the work lacked serious literary, artistic, or scientific value.” (Miller v. California (1973) 413 U.S. 15, 24.)

While pornography that is not obscene is protected speech under the First Amendment, child pornography is a different matter. The Supreme Court has recognized that a state may legitimately sanction activities which amount to harmful conduct rather than "pure speech," particularly when the conduct in question involves the use of children to make sexual material. (Ferber, supra, 458 U.S. at pp. 770-771.) The “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” (Id. at p. 757.) The use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 757; Osborne v. Ohio (1990) 495 U.S. 103, 109.) Thus, “pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California.” (Free Speech Coalition, supra, 535 U.S. at p. 240, citing Ferber, supra, 458 U.S. at p. 764.)

Due to the differences of how these categories of speech are treated under the First Amendment, obscene speech and child pornography may be banned based on its content, whereas indecent speech cannot be outright banned but may be regulated by the government which has a substantial interest in protecting morals and public order in society. (Barnes v. Glen Theater, Inc. (1991) 501 U.S. 560, 569.) Generally, laws that are content neutral face intermediate scrutiny, while laws that are content based are presumptively invalid and face strict scrutiny, a higher standard. (Turner Broadcasting System v. Federal Communication Commission (1994) 512 U.S. 622.) A content-based restriction means that the regulation restricts a specific subject matter, in this case sexually explicit speech. Thus, the standard by which the court would allow such a regulation to be upheld is strict scrutiny which requires a showing that the restriction is necessary to serve a compelling state interest. (Sable Communications of California, supra, at p. 126.) Thus, regardless of how important the state interest, the regulation of indecent speech must still be precise enough to achieve the purpose the regulation is intended to serve. (Reno v. ACLU (1977) 521 U.S. 844, 874.)

• 1. Relevant Court Cases

This bill adds images generated by AI to the existing statutes that criminalize child pornography and obscene matter. Specifically, these statutes criminalize the possession, distribution, exchange or production of any matter, representation of information, data, or image, including but not limited to a list of medium, such as computer-generated images, that may be used to distribute or exhibit matter that contains or incorporates materials involving the use of a person under the age of 18 years old personally engaging in or simulating sexual conduct. This bill specifies that computer-generated images include images generated by AI.

While AI encompasses a broad range of images which may be real or fabricated, when applied in the context of existing child pornography statutes, the image must be of a real minor in order to pass constitutional scrutiny. In Free Speech Coalition, supra, the U.S. Supreme Court declared unconstitutional a federal law that defined child pornography to include visual depictions that appear to be of a minor, even if no minor was actually used. (535 U.S. 234.) The government argued that while real children were not harmed in the production of the materials, the materials could still lead to abuse of real children by pedophiles who “whet their own sexual appetites” with such materials. (Id. at p. 241.) Additionally, the government argued that as imaging technology improves, it becomes more difficult to prove that a particular picture was produced using actual children. (Id. at 242.) The Court found these arguments were insufficient reasons to treat virtual child pornography the same as child pornography made with a real minor. In Ferber, supra, the Court found that the production and distribution of child pornography are “intrinsically related” to the sexual abuse of the child because the material acts as a permanent record of the child’s abuse and the circulation of the material would harm the child’s reputation and emotional well-being. (Id. at p. 249.) The Court distinguished the harm in virtual child pornography created without using a real minor because it is not a recording of a criminal act nor is there continuing harm on a child victim by the distribution of the materials. (Id. at p. 250.)

The Free Speech Coalition ruling, albeit in dicta, did comment on the difference between pure virtual images versus morphing images where innocent pictures of real children are altered so that the children appear to be engaged in sexual activity. “Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.” (Id. at p. 242.)

In U.S. v. Hotaling (2002), 599 F.Supp.2d 306, the Northern District Court of New York, relying on dicta from the Free Speech Coalition case, as well as other district court and U.S. appellate court cases, held that criminalizing morphed images of child pornography created without the filming or photography of actual sexual conduct on the part of the identifiable minor does not violate the First Amendment. (Id. at p. 321.) “An image of an identifiable, real child involving sadistic conduct -- even if manipulated to portray conduct that was not actually inflicted on that child -- is still harmful, and the amount of emotional harm inflicted will likely correspond to the severity of the conduct depicted.” (Id. at p. 320, citing U.S. v. Hoey (1st Cir. 2007) 508 F.3d 687, 693.) Hotaling also cited similar reasoning which was used by another appellate court in holding that an image in which the face of a known child was transposed onto the naked body of an unidentified child in a lascivious pose constituted child pornography outside the scope of the First Amendment protections. (Id. at p. 319, citing U.S. v. Bach (8th Cir. 2005) 400 F.3d 622.)

In contrast, a California appellate court held that the possession of morphed images, while morally repugnant, does not fall outside the protection of the First Amendment. (People v. Gerber (2011) 196 Cal.App.4th 368, 386.) The court looked at Legislative history of previously enacted statutes that contain the same language -- “personally engaging in or personally simulating sexual conduct” -- and found that it is “clear that the purpose of that legislation was to prevent exploitation of children used to make child pornography.” (Id. at p. 380, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1580 (1977-1978 Reg. Sess.) as amended Aug. 18, 1977, p. 1.) The court also noted that at the time that the Legislature enacted the crime of possession of child pornography, the term “child pornography” had a particular meaning under Ferber, supra. Specifically, not only must the offender have known that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, production of the matter must have “involve[d] the use of a person under the age of 18 years…” (Id. at p. 382, citing Ferber, supra, 458 U.S. 747, and Cal. Pen. Code, § 311.11.)

Thus, Gerber held that “it would appear that a real child must have been used in the production and actually engaged in or simulated the sexual conduct depicted.” (Id. at p. 382.) The court acknowledged the dicta in Free Speech Coalition on morphed images, however, held that such altered materials are closer to virtual child pornography than to real child pornography because the act does not necessarily involve sexual exploitation of an actual child. (Id. at p. 386.) Relying on the rationales laid out in both Ferber, supra and Free Speech Coalition, the court emphasized that “Ferber’s judgment about child pornography was based upon how it was made, not on what it communicated and Ferber reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.” (Id. at p. 385, citing Free Speech Coalition, supra, 535 U.S. at pp. 250-251.)

As stated above, this bill includes images generated by the use of AI to computer-generated images in existing statutes that prohibit obscene matter and child pornography. In a literal sense, an AI image is a type of computer-generated image so this bill could be interpreted to merely clarify existing law. To the extent that this bill may be interpreted to expand existing law to images not explicitly covered, such as applying to morphed images of child pornography, case law is not clear on where the constitutional line should be drawn. Whether such expanded application of this bill passes First Amendment scrutiny is ultimately up to the courts.

1. Argument in Support

According to Concerned Women for America:

Child pornography is a root cause of sexual child abuse and child sex trafficking. With AI technology, pornography filmmakers can create new and ever-increasing pictures, images, and videos of children engaging in or simulating sexual acts. Such images dehumanize children and transforms them into objects for abuse. (Fn. omitted.)

It is well documented that viewing pornography, of any type, eventually ceases to satisfy the viewer and increases the likelihood of engaging in the fantasized behavior. Child pornography normalizes and legitimizes the sexual interest in minors. SB 933 takes a bold step in protecting children from artificial intelligent software or computer-generated depictions of children being sexually exploited.

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