this post was submitted on 25 Oct 2023
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Drawn art depicting minors in sexual situations has been deemed protected as free speech in the US. It's why, at least in the US, you don't have to worry about the anime girl that's 17 landing you in prison on child porn charges. The reasoning: there is no victim, the anime girl is not sentient, therefore the creation of that art is protected as free speech.
I suspect a similar thing will happen with this. As long as it is not depicting a real person, the completely invented person is not sentient, there is no victim, this will fall under free speech. At least in the US.
However, it is likely a very, very bad idea to have any photo-realistic art of this manner, as it may not be clear to authorities if it is from AI or if there is in fact a person you are victimizing. Doubly so if you download this from someone else, as you don't know if that is a real person either.
Deepfakes of an actual child should be considered defamatory use of a person's image; but they aren't evidence of actual abuse the way real CSAM is.
Remember, the original point of the term "child sexual abuse material" was to distinguish images/video made through the actual abuse of a child, from depictions not involving actual abuse -- such as erotic Harry Potter fanfiction, anime characters, drawings from imagination, and the like.
Purely fictional depictions, not involving any actual child being abused, are not evidence of a crime. Even deepfake images depicting a real person, but without their actual involvement, are a different sort of problem from actual child abuse. (And should be considered defamatory, same as deepfakes of an adult.)
But if a picture does not depict a crime of abuse, and does not depict a real person, it is basically an illustration, same as if it was drawn with a pencil.
although that distinction lasted about a week before the same bad actors who cancel people over incest fanfic started calling all the latter CSEM too
As a sometime fanfic writer, I do notice when fascists attack sites like AO3 under a pretense of "protecting children", yes.
And it's usually fascists, or at least people who may not consider themselves as such but think and act like fascists anyways.