Since the early 2000’s, technology has rapidly and significantly developed.[1] Artificial Intelligence (“AI”) is the latest iteration leading the field in technological innovations.[2] The influence of AI on our society is extensive—even affecting the creation of “art.”[3] Giving a specific prompt to an AI software can provide someone with an entire piece of “art,” whether it be a modern take on the Mona Lisa,[4] an artificially created Drake song,[5] or a piece of pornography altered to depict a child or minor.[6]

Effective October 1, 2023, Maryland Senate Bill 226 will prohibit a person from “knowingly or . . . intentionally view[ing] . . . a visual representation showing . . . a computer-generated image that is indistinguishable from an actual and identifiable child younger than age of 16 years.”[7] This bill amends Section 11-208 of Maryland’s Criminal Law Code,[8] and the bill builds upon an amendment to Section 11-208 from 2019 that criminalized the possession and intentional retention of a “visual representation showing . . . a computer-generated image that is indistinguishable from an actual and identifiable child under the age of 16 years.”[9] The 2019 amendment aligned the statute with federal regulations, closed a loophole preventing certain Marylanders from being prosecuted, and responded to developing technologies like deepfakes.[10] The Maryland General Assembly has likely expanded the definition of illegal conduct to include accessing child pornography, not just possessing it, to further its response to developing technologies.[11]

Multiple legislative bodies—including Congress—have failed to institute a prohibition on computer-generated child pornography.[12] Before the turn of the century, Congress passed the Child Pornography Prevention Act of 1996 (“CPPA”).[13] The CPPA expanded the federal definition of child pornography to include visuals created without real children but appearing to depict them.[14] In 2002, the Supreme Court decided Ashcroft v. Free Speech Coalition.[15] The court examined the CPPA’s constitutionality, and ultimately held that the CPPA was overbroad for criminalizing legal forms of media and unconstitutional for violating the First Amendment’s freedom of speech clause.[16]

To ensure Section 11-208 is narrowly tailored and cannot be interpreted as overbroad like the CPPA was, the statute excludes drawings, cartoons, sculptures, and paintings.[17] Moreover, the statute explicitly requires the computer-generated child be indistinguishable from an actual and identifiable child.[18] Nevertheless, Section 11-208 is likely—as the CPPA was—inconstant with New York v. Farber,[19] given that no actual children are abused in the creation of this pornography still.[20] Thus, if Section 11-208 is challenged under the First Amendment, Maryland must assert a compelling interest besides safeguarding minors to survive strict scrutiny.[21]

Here, a compelling interest Maryland can offer for prohibiting computer-generated child pornography is one of Congress’s original reasons for enacting the CPPA—prosecutors may not be able to prove whether the child pornography is computer-generated or real.[22] In his concurring opinion in Ashcroft, Justice Clarence Thomas acknowledged that the inability to differentiate between actual and identifiable child pornography versus computer-generated child pornography may be a viable compelling interest in the future.[23] He stated that if technology advances enough, prosecutors might be unable to carry their burden and prove that the pornographic images are of real children, not computer-generated ones.[24]

Justice Thomas did not believe this rationale was compelling in 2002, but now, in 2023, considering the significant advances in technologies, it is evident that this rationale is more than compelling. Technology is rapidly approaching the point where distinguishing what is authentic from what is synthetic is nearly impossible. Accordingly, the Maryland General Assembly is ensuring Maryland will be able to prosecute child pornography viewers and possessors alike without an overwhelming burden of proving the pornography depicts an actual, real-life child.

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Emmett Hallameyer is a second-year day student at the University of Baltimore School of Law and a First-Year Staff Editor for Law Forum. Emmett graduated from Stevenson University Magna Cum Laude in 2021 with a B.S. in legal studies. Emmett is also a member of the law school’s National Trial Competition Team and a law scholar for criminal law. Emmett interned for the Maryland Attorney General’s Organized Crime Unit before law school, and upon graduation, Emmett hopes to pursue a career in criminal law or civil rights law.

[1] See Anthony Cuthbertson & Andrew Griffin, The 20 Technologies that Defined the First 20 Years of the 21st Century, Independent (Mar. 24,  2021, 11:58 AM), https://www.independent.co.uk/tech/technology-bitcoin-iphone-tesla-ai-b1821678.html.

[2] See Darrell M. West & John R. Allen, How Artificial Intelligence is Transforming the World, Brookings Inst. (Apr. 24, 2018), https://www.brookings.edu/articles/how-artificial-intelligence-is-transforming-the-world/ (“AI may . . . become the single most influential human innovation in history.”).

[3] Editorial, Artificial Intelligence: How AI is Changing Art, Aela (Apr. 1, 2023), https://aelaschool.com/en/art/artificial-intelligence-art-changes/.

[4] Jon King, AI Reworks Leonardo da Vinci’s Mona Lisa to Show How It Would Look If It Was Painted Today, Express (July 31, 2023), https://www.express.co.uk/news/science/1797012/leonardo-da-vinci-mona-lisa-artificial-intelligence.

[5] Chloe Veltman, When You Realize Your Favorite New Song Was Written and Performed by…AI, NPR (Apr. 21, 2023, 5:00 AM), https://www.npr.org/2023/04/21/1171032649/ai-music-heart-on-my-sleeve-drake-the-weeknd.

[6] Katie Bente, ‘It’s Extremely Disturbing’: Attorney General Ashley Moody Looks to Stop Predators From Using AI to Create Child Pornography, CBS 12 news (Sept. 8, 2023, 9:34 PM), https://cbs12.com/news/local/artificial-intelligence-ai-dangers-sexual-abuse-material-its-extremely-disturbing-attorney-general-ashley-moody-looks-to-stop-predators-from-using-ai-to-create-child-pornography-september-8-2023.

[7] Act of May 16, 2023, ch. 759, 2023 Md. Laws. See S. 226, 2023 Gen. Assemb., 445th Sess. (Md. 2023).

[8] Md. Code Ann., Crim. Law § 11-208 (West 2021).

[9] Id.

[10] In re S.K., 466 Md. 31, 56, 215 A.3d 300, 315 n.22 (2019); see also Ian Sample, What are Deepfakes – and How Can You Spot Them?, Guardian (Jan. 13, 2020), https://www.theguardian.com/technology/2020/jan/13/what-are-deepfakes-and-how-can-you-spot-them (“The 21st century’s . . . Photoshopping, deepfakes use . . . artificial intelligence . . . to make [realistic but fake] images [or videos] . . . .”).

[11] Criminal Law – Child Pornography – Accessing and Intentionally Viewing: Hearing on S. 226 Before the Jud. Proc. Comm., 2023 Gen. Assemb., 445th Sess. (Md. 2023) (statement of Peggy Cairns, Pres. Emeritus, Md. Coal. Against Pornography, Inc.), https://mgaleg.maryland.gov/cmte_testimony/2023/jpr/1sdiBx0eKBmTllYsCZEgwCM7Ha6ms-3Dy.pdf (“[T]echnology . . . has enabled livestreaming . . . of [child] sexual exploitation . . . . The images are not downloaded or retained . . . so there is no long-lasting trail . . . . Yet the abuse is occurring . . . and we need to provide . . . prosecutors a legal avenue to . . . press charges.”).

[12] See Linda Greenhouse, ‘Virtual’ Child Pornography Ban Overturned, N.Y. Times, Apr. 17, 2002, at A1 (“New Jersey and 10 other states explicitly ban[ned] computer-generated virtual child pornography in laws that are now presumably unconstitutional [after the Ashcroft v. Free Speech Coalition decision].”).

[13] Sarah Sternberg, The Child Pornography Prevention Act of 1996 and the First Amendment: Virtual Antitheses, 69 Fordham L. Rev. 2783, 2796 (2001).

[14] Id. at 2797.

[15] See generally Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).

[16] Id.

[17] Md. Code Ann., Crim. Law § 11-208 (West 2023); see also Ashcroft, 535 U.S. at 246 (2002) (“The CPPA . . . extends to images that appear to depict a minor engaging in sexually explicit . . . . Any depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse.).

[18] See Ashcroft, 535 U.S. at 265 (O’Connor, J., concurring) (“Reading the statute only to bar images that are virtually indistinguishable from actual children would not only assure that the ban on virtual child pornography is narrowly tailored, but would also assuage any fears that the . . . language is vague.”).

[19] New York v. Ferber, 458 U.S. 747 (1982) (holding that the distribution and production of child pornography may be outlawed when it is intrinsically related to child abuse as the government has a compelling interest in physically and mentally safeguarding minors.).

[20] Ashcroft, 535 U.S. 234 (2002) (holding that the CPPA’s ban on computer-generated child pornography—speech that is not intrinsically related to child abuse—is inconsistent with Farber.).

[21] Ashcroft, 535 U.S. at 251 (majority opinion) (“The CPPA, for reasons we have explored, is inconsistent with . . . Ferber. The Government [must] justify its prohibitions in other way[].”).

[22] Id. at 242.

[23] Id. at 259 (Thomas, J., concurring).

[24] Id.