Nearly every state, including Wisconsin, has enacted laws that protect communities when criminals use technology like artificial intelligence (AI) to create pornographic deepfakes and child sexual abuse material (CSAM)—but a recent federal appeals court ruling may change how those laws are upheld in the future.
In August, the US Court of Appeals for the 7th Circuit ruled that the First Amendment of the Constitution protected Steven Anderegg of Holmen after he was arrested in 2024 and charged with producing, distributing, and possessing thousands of images depicting minors engaging in sexually explicit conduct. Anderegg allegedly used an open-source AI text-to-image generator to create the images.
Circuit Judge John Z. Lee made the ruling after referring to two US Supreme Court decisions from 1969 and 2022. The first ruled that individuals have a right to keep obscene materials in the privacy of their homes, and the second ruled that CSAM that does not depict real children is not defined as “child pornography” and is therefore protected by the First Amendment.
While the ruling conflicts with current Wisconsin law banning AI-generated CSAM, it applied to Anderegg’s criminal charges for possessing the materials, so he still faces prosecution for producing and distributing them. Meanwhile, legal experts, including other federal judges who tried this case, say it “illuminates how this evolving technology complicates the lines drawn by the Supreme Court…but we are not free to redraw them ourselves.”
What’s the current law in Wisconsin?
Introduced by state Republicans in 2023 and signed by Gov. Tony Evers a year later, Wisconsin Act 224 established possession of virtual CSAM as a crime, including possession, production, and distribution of “obscene material” that contains a “depiction of a purported child,” or when someone uses technology, like AI, to generate CSAM, regardless of whether the child is real.
Those convicted of breaking the felony-level crime face consequences similar to other CSAM laws, including a minimum of three years in prison, a requirement that the individual register as a sex offender, and paying a fine of $500 for each image associated with the crime.
The law has been used to sentence several individuals in recent years, including an Illinois man who pled guilty in Waukesha County and used an AI generator and photos of a 15-year-old teen he knew in real life to create over 50 sexually explicit videos and images that were later saved on his cellphone.
What happens next?
While the federal court ruling does not make AI-generated CSAM broadly legal, and Wisconsin Act 224 remains intact, legal experts say the Supreme Court could take up the Anderegg case in October, where it could be overturned. Reports argue that AI models have actually been trained on CSAM imagery, and organizations like the National Center for Missing and Exploited Children (NCMEC) report an uptick in the number of AI-generated CSAM reports to their tipline since 2023.
If you are a child being sexually exploited online, or you know a child who is being sexually exploited online, or you witnessed exploitation of a child occur online, you can report it to NCMEC’s CyberTipline.
Related: Wisconsin set to receive $313M from Meta in landmark child safety reform settlement
