The War on Porn Regular Updates about the Assault on The Adult Industry
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There’s been a lot of discussion of AI-generated porn lately, particularly in the days since OpenAI announced that starting in December, the firm would allow “mature content” to be generated by ChatGPT users who have verified their age on the platform. Understandably, much of that discussion has centered on consent—or the lack of such—in the context of AI content generation, given the proliferation of “deepfake” content in recent years.
Concern over publicly available images being used to create AI porn without the consent of the people being depicted is also driving legislative bodies everywhere to consider passing new laws that specifically forbid the practice. In South Dakota, for example, Attorney General Marty Jackley wants the legislature to craft a new law making it a felony to create AI-generated porn from an image of a non-consenting adult, which would mirror a law passed in the state last year making it a crime to do so using images of a minor.
You can certainly understand why this sort of law appeals to people, even if there are some potentially tricky First Amendment questions raised by such a prohibition. I don’t think any of us like the idea of someone grabbing our old yearbook photos and creating ‘porn doubles’ of us to be distributed willy nilly on the internet. But that very understandable and sensible concern doesn’t make the potential First Amendment questions magically disappear.
For one, if it’s not possible to make it illegal to create, say, a painting of a public figure without that person’s permission (and it isn’t), can it be made illegal to use AI to create an image of that same person? If it’s OK to create a non-pornographic image of that person, can a pornographic image of them be illegal only if it is also considered legally “obscene”?
While a lot of the questions around AI porn pertain to its potential for abuse, there’s a flipside to it, as well. For example, if one’s primary objection to the creation of pornography is rooted in its impact on the performers—the risks to their health and safety, the oft-cited potential for human trafficking being involved, etc.—then isn’t it better if the only “actors” involved are entirely digital beings?
On the other hand, if you’re someone who creates adult content, particular in a performing capacity, the prospect of being replaced by a competitor who doesn’t need to travel, sleep, undergo STD screening or pay any bills is a frightening one, I should think—particularly if there’s no legal mechanism preventing unscrupulous third parties from profiting by effectively pirating your very likeness. Getting replaced in a job by anyone sucks; just imagine what it would be like to get replaced by a counterfeit of yourself!
To sort all this out and craft effective legislation and regulation of AI porn is going to take a lot of careful, deliberate, rational thought. Unfortunately, I’m not sure there’s a lot of that to be found within the halls of Congress or any other legislative body. So, in all likelihood, states around the country and countries around the world will continue to struggle to get their heads wrapped around AI porn (and AI more generally) the same way they’ve struggled with the internet itself for the last several decades.
In the meantime, the rest of us will try to muddle through, as best we can. Personally, I have no plans to either create or consume AI porn… but will I even know I’m doing so, if it happens?
Add that to the list of thorny questions, I suppose.
