Is AI-Generated Porn Illegal? U.S. Laws Explained

The rise of artificial intelligence has brought with it a new frontier regarding pornography: AI-generated content. From realistic deepfakes of celebrities to entirely fictitious images of non-existent people, AI-generated porn raises complex legal and ethical questions. As this technology becomes more advanced and accessible, it’s crucial to understand the current legal landscape surrounding AI porn in the United States.

At Minc Law, we focus exclusively on Internet law and digital privacy issues. We’ve been closely following the developments in AI-generated porn. In this article, we’ll clarify the current state of U.S. laws regarding AI porn at both the federal and state levels. We’ll also discuss the potential legal risks for creators and distributors, as well as the options available for individuals who have been targeted by nonconsensual deepfakes.

The Legal Landscape of AI-Generated Porn

The legality of AI-generated porn is a complex issue that involves federal and state jurisdiction. At the federal level, there are no specific laws that explicitly address AI-generated porn. However, existing obscenity laws, such as the Miller test, may apply to certain types of AI-generated content.

Under the Miller test, material can be deemed obscene if it meets three criteria:

1. The average person, according to contemporary community standards, would find that the work appeals to the public interest as a whole.
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically violating applicable state law.
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If AI-generated porn is found to be obscene under this test, it may be illegal to create, distribute, or possess under federal law.

State Laws on AI-Generated Porn

At the state level, the legal landscape is even more complex. Some states have started to address the issue of AI-generated porn through legislation. For example:

• Virginia code 18.2-386.2 states that the creation and dissemination of nonconsentual pornography is prohibited. The law covers AI deepfakes under this Class 1 misdemeanor.
• The California Assembly Bill 602 introduced a law that allows victims of nonconsensual deepfake pornography to file a civil lawsuits against the creators and distributors for damages.
• In September of 2023, Texas criminalized the unlawful disclosure of intimate visual material, including deepfakes, which may apply to certain types of AI-generated porn.

However, many states have yet to pass laws specifically addressing AI-generated porn, leaving courts to interpret existing statutes on a case-by-case basis.

Consent and Intellectual Property Issues

One of the key legal issues surrounding AI-generated porn is consent. When an individual’s likeness is used in an AI-generated deepfake without their permission, it can be considered a violation of their privacy and publicity rights. This is particularly true in cases where the deepfake is pornographic or otherwise harmful to the individual’s reputation.

In addition to consent issues, AI-generated porn can also raise intellectual property concerns. If an AI model is produced from copyrighted images or videos without permission, the resulting generated content may be considered copyright infringement. This is a complex area of law that is still developing as courts grapple with how to apply existing intellectual property laws to AI-generated content.

Legal Risks for Creators and Distributors

Creators and distributors of AI-generated porn may face legal risks, depending on the nature of the content and how it is disseminated. If the content is found to be obscene under federal law or in violation of state revenge porn or nonconsensual deepfake laws, they could face criminal charges and civil lawsuits.

Even if the content is not explicitly illegal, creators and distributors may still be subject to civil liability for invasion of privacy, emotional distress, or other tort claims. In some cases, they may also face copyright infringement claims if the AI model was trained on copyrighted material without permission.

Options for Victims of Nonconsensual Deepfakes

For individuals who have been targeted by nonconsensual deepfake pornography, there are several options for seeking justice and support. The first step is to document the content and preserve any evidence, such as screenshots or URLs. This can be important for building a case against the creator or distributor.

Victims can also report the content to the platforms where it is hosted and request that it be removed. Many social media and content sharing platforms have policies against nonconsensual deepfakes and will take down the content if it is reported.

In some cases, victims may also be able to pursue legal action against the creator or distributor. Depending on the state, this may include criminal charges under revenge porn, nonconsensual deepfake laws, or civil lawsuits for damages.

Victims of nonconsensual deepfakes may also benefit from seeking support from organizations that specialize in helping victims of online abuse. These organizations can provide resources, guidance, and emotional support to help victims cope with the trauma of having their privacy violated.

Proposed Federal Legislation on AI-Generated Porn

As the issue of AI-generated porn gains more attention, there have been efforts at the federal level to address it through legislation. In 2019, a bill known as the DEEP FAKES Accountability Act was introduced in the House of Representatives. This bill would have required anyone creating a deepfake to disclose that the content is altered or generated using irremovable digital watermarks. If violated, punishments could include a fine, up to 5 years in jail, or both.

Another proposed bill, the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject (DEEP FAKES) to Accountability Act, would have established criminal and civil penalties for creating or distributing harmful deepfakes, including those involving nonconsensual pornography.

While neither of these bills has been passed into law yet, they demonstrate a growing recognition among lawmakers of the need to address the challenges posed by AI-generated content, particularly in the context of pornography.

The Need for a Comprehensive Legal Framework

As AI technology continues to advance, the legal landscape surrounding AI-generated porn is likely to evolve as well. While some states have taken steps to address the issue through legislation, there is still a need for a more comprehensive and cohesive framework at the federal level.

This framework should aim to balance the rights of individuals to privacy and consent with the First Amendment protections for free speech. It should also provide clear guidelines for creators and distributors of AI-generated content, as well as robust protections and support for victims of nonconsensual deepfakes.

The Role of Content Platforms and Moderation

In addition to legal solutions, content platforms and social media companies also have a role to play in addressing the spread of nonconsensual AI-generated porn. Many platforms have already implemented policies and tools to detect and remove deepfakes, but these efforts need to be continually improved and expanded.

Content moderation teams should be trained to recognize and flag potential deepfakes, and platforms should have clear reporting mechanisms for users to flag nonconsensual content. Collaboration between platforms, law enforcement, and victim support organizations can also help to create a more coordinated response to this issue.

Conclusion

The rise of AI-generated porn has created new challenges for the legal system, as well as for individuals and society as a whole. While the technology itself is not inherently illegal, the ways in which it can be used to violate personal privacy and consent make it a complex and concerning issue.

As legislation continues to evolve, it is important for individuals to be aware of their rights and options if they are targeted by nonconsensual deepfakes. It is also crucial for lawmakers, content platforms, and society as a whole to work towards creating a more comprehensive and effective framework for addressing this issue, one that balances free speech with the protection of individual rights and well-being.

At Minc Law, we are committed to staying at the forefront of these developments and providing our clients with the guidance and support they need to navigate this complex issue. If you have been the victim of nonconsensual AI-generated porn or have questions about your legal rights and options, we encourage you to reach out to our team for a consultation.

If you would like to explore your options, please reach out to schedule your initial consultation by calling us at (216) 373-7706 or filling out our online contact form.