A US court has just exposed a disturbing gap between AI and child protection law.
On 25 August 2026, the US Court of Appeals for the Seventh Circuit ruled that the private possession of fully AI-generated child sexual abuse material (CSAM) can be constitutionally protected when no real child was involved in creating the images.
That does not mean America has simply legalised AI-generated CSAM.
Creating, distributing or sending this material can still be criminal. And most US states are actually moving in the opposite direction, introducing laws specifically targeting AI-generated CSAM.
The problem lies in a legal distinction made long before today’s generative AI existed.
A law written for another technological era
In 2002, the US Supreme Court ruled that entirely virtual sexual images of children were different from traditional CSAM because no real child had been abused to create them.
That distinction made more sense when convincing synthetic images were difficult to produce.
Today, anyone with the right AI tools can generate photorealistic images of children who never existed.
And that creates a serious problem.
If police discover an image depicting the sexual abuse of a child, how do they know whether they are looking for a real victim or an AI-generated one?
How much investigative capacity will be consumed separating synthetic material from evidence of real abuse?
And should something become legally acceptable simply because AI generated the victim?
The law is catching up — but AI is moving faster
Most US states are already introducing or strengthening laws covering synthetic CSAM. The UK and other jurisdictions are also closing loopholes.
But this court case demonstrates something much bigger:
AI doesn’t just create new risks. It exposes weaknesses in laws written for a world that no longer exists.
The judge in this case effectively acknowledged the problem and suggested that the US Supreme Court may need to reconsider the issue.
It probably does.
Because when technology changes what is possible, child protection law cannot afford to remain frozen in 2002.
— Bronwyn Johnson
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