[RajT88]

> Certainly this opens the door to a whole plethora of new "it's AI art, I swear!" defenses

You are probably right, given what we saw with all the porn popup adware back in the 90's and 2000's. A friend of mine was a malware analyst for the FBI for a while.

All CSAM possession cases she heard about, the defense was "malware did it". Nearly all cases the jury convicted them. 100% of her cases for sure.

At some point using the defense everyone else uses and fails with is probably going to become a liability. Shit I am sure people are already trying to use this defense and failing!

[grepfru_it]

It only went to court because they had enough evidence to prove it is not malware. You have excluded all of the possible cases that used the malware defense and plea’d out or never went to trial.

Similarly, I think using the AI art excuse may be an uphill battle but not one that is impossible to defend

[anigbrowl]

This isn't how the legal system works. Most CP cases get prosecuted because the defendant solicits or shares CP with a minor of some other CP collectors, but let's imagine a situation where someone gets busted from something else and then investigators discover they have CP (real-world non-AI CP in this example).

Having it at all is a strict liability crime. If the defendant says malware put it on their computer and they don't know how or when it got there, that's called an affirmative defense - it's admissible as a claim, but the burden of proof for the claim is on the defendant. Otherwise you could just claim it was planted on your computer by ghosts or demons or space aliens. If the machine was infested with malware to the point of the browser being nearly inoperable and all sort so fother junk being present, a jury might buy it. But the defendant has to make some sort of showing to back up the claim. The whole thing about 'reasonable doubt' in criminal cases is not that something sounds possible or even plausible, but that you can support the claim with some mix of logic and empirical evidence like any other reasoned argument.

https://www.law.cornell.edu/wex/affirmative_defense

[JKCalhoun]

While disgusting, I'm thinking that if the courts insist on allowing this, I can try and comfort myself with this thought: I don't doubt that if you find one "AI CSAM" image on someone's drive, keep digging — you'll find illegal stuff too.

Sick people will still go to jail.

[themaninthedark]

Usually when someone is arrested for this kind of thing it's not one image but a couple thousand so you are right.

Edit add:

I have mixed feeling about this...Let me preface by saying that child abuse is abhorrent.

One of my former coworkers was arrested for possession of CSAM...he was never charged or accused of any abuse. I wasn't close to him; he was quiet and went out of his way to help. He (probably)killed himself(young, died suddenly) last week ahead of his trial.

So I have to wonder would having something like this help him and protect kids as well? Or does possession lead to abuse?

I don't know...people have problems and are sick. At what point do we write them off as irredeemable?

[JKCalhoun]

I know. I am aware of a man who abused some of my friends — also committed suicide before trial. By all accounts, most of the boys (who were from broken homes, FWIW) thought of him as a father figure and were not eager to see him prosecuted — shocked when they learned of the suicide.

A friend of the family tried to molest me when I was young. A quick search on the internet shows he kept at it (arrest records across decades abound). So, yeah, this kind of sick person kind of stays sick.

[themaninthedark]

Man that sucks. Sorry.

Not sure what else to say....

I hate the idea of permanently broken people but I also know that not everything is fixable.