With the improvements to AI-generated images and increasing use of things like ChatGPT and Grok, there have been increased concerns that these AI programs are producing images that could be illegal. From concerns about child pornography to harassment and revenge porn, these AI-generated images could lead to criminal charges.
Anything from a drawing to a doctored photograph has always been the kind of imagery that could be used to harass someone else, and that is no different for AI images. Additionally, child pornography laws typically criminalize photoshopped or computer-generated images of minors as illegal material if the images depict underage people, whether real or fictional. There may also be other grounds for AI-generated images leading to criminal charges, but like with any emerging technology, courts and prosecutors are still trying to figure out how these images interact with existing laws.
For help with criminal charges, call the New Jersey criminal defense attorneys at the Law Offices of John J. Zarych at (609) 616-4956.
AI Images Used for Harassment
Drawings and other images other than photographs have long been possible grounds for harassment charges if they meet all of the elements. For that reason, AI-generated images could easily be used for harassment charges as well.
Definition of Harassment
The definition of harassment in NJ under N.J.S.A. § 2C:33-4 quite broadly encompasses any communications made repeatedly or with the intent to “cause annoyance or alarm.” This could broadly include sending someone images meant to alarm them, whether they are photographs, AI-generated images, or even drawings.
Applied to AI Images
For example, it would likely constitute harassment to draw a stick figure beating up another stick figure labeled with the victim’s name. AI-generated images used to threaten or harass the victim could easily be considered alarming. For example:
- AI images showing the victim in dangerous or threatening situations.
- AI images of the victim’s family or friends in similar situations.
- Embarrassing AI images of the victim meant to bother them.
Stalking Charges
Sometimes repeat instances of harassment amount to stalking charges. Things like sending nude AI images of a person or otherwise repeatedly harassing them could constitute stalking under N.J.S.A. § 2C:12-10 if they are meant to cause emotional distress or fear.
AI Images as Threats
Similarly to harassment, some images could be used to threaten. Under N.J.S.A. § 2C:12-3, the crime of “terroristic threats” can occur in two ways:
- By threatening to commit a violent crime against a building or assembly place.
- By threatening to kill someone.
Death threats depicted in a picture are just as likely to result in criminal charges as death threats in words. For example, sending someone an AI image of them with a gun pointed at them could easily be construed as a threat.
AI Images as Child Pornography or CSAM
Child sexual abuse materials (CSAM) or child pornography offenses involve having photo or video depictions of minors in sexual or promiscuous situations. AI images may be able to satisfy all of these elements.
Statutes
NJ’s child pornography statute is under N.J.S.A. § 2C:24-4 under a crime titled “endangering welfare of children.” There are crimes for the production of, storage of, and sharing of CSAM images or videos.
Do AI Images Count?
Under this statute, there are very expansive definitions of what counts as an illegal “item depicting the sexual exploitation or abuse of a child” or “child sexual abuse or exploitation material” – what the law calls “CSAEM” or “materials.” Under this definition, materials are illegal if they do either of these:
- Depict a child in a sexual act, real or simulated
- Portray “a child in a sexually suggestive manner.”
Under this, photos, film, and videos are included, as are “an image” or “file” or “any other reproduction or reconstruction.” This arguably means that even fictional representations of minors, such as cartoons or computer-generated images, could also count as CSEAM. Prosecutors may use similar AI images as grounds for charges.
AI Images as Revenge Porn
“Revenge porn” involves an invasion of privacy by sharing nude photos of someone without their consent. Whether AI images can constitute this crime is an untested question.
Definition of Revenge Porn
NJ’s revenge porn statute is N.J.S.A. § 2C:14-9, which makes it an illegal invasion of privacy to share intimate images without consent. This would clearly make it illegal to share nude or intimate photographs.
Do AI Images Count?
The statute makes it illegal to take photos/video or to disclose photos/video, but it also includes phrasing about “reproduc[ing] in any manner, the image of another person” or disclosing such reproductions.
Using a generative AI program to create a video showing someone’s likeness nude without their consent could qualify under this statute, if such an image is deemed a “reproduction” under these terms. Similar to how child pornography does not require a real photo, an AI-generated picture might suffice for charges.
FAQs for Criminal Charges Regarding AI Images
Is it Fraud to Use AI Images in Advertising?
AI-generated images that are used in advertising may cross the line into fraud only if they are false in such a way that it induces someone to spend money with you.
For example, an AI-generated image of the “product” you are selling may be considered false if it is nothing like the actual product you are actually selling. However, something like general pictures of smiling people likely would not be fraudulent.
Is it a Crime to Use Copyrighted Images in AI Image Generation?
Copyright issues are typically civil issues, not criminal issues.
Can I Be Charged with a Crime if I Saw AI-Generated Child Pornography on Social Media?
Recent news reports have brought up concerns alleging Grok or other AIs could be used to produce CSAM, and that simply being on the same social media site where they were posted could open you to criminal liability.
It is possible that any CSAM images or videos on your phone or computer could be used for criminal charges. It is also likely that viewing these images keeps a copy in the data cache on your phone or computer. However, it is possible that if you did not seek or keep any of these images intentionally, it might not result in a conviction. However, you may need an Atlantic City, NJ criminal defense lawyer to stop these charges.
Is the Program or the User Responsible?
It is possible that both the user who inputs the prompt and the company making the AI software could be responsible for illegal images these AI programs create. Both the company and the user would have a copy of the photo and either could potentially be charged as the “creator” for something like CSAM.
Call Our Criminal Defense Lawyers in New Jersey Today
For a free review of your charges, call the Law Offices of John J. Zarych’s Ocean City, NJ criminal defense lawyers at (609) 616-4956.
