It may seem hard to believe, but up through 2024, it was completely legal to create AI-generated pornography, even if it depicts a child’s likeness. However, this will all change in 2025, thanks to a new slate of laws signed by California Governor Gavin Newsom that target the sharing and creation of deepfake porn, namely SB 926, SB 1381, and AB 1831.
These laws are the first of their kind in the nation. While they are likely to face some First Amendment challenges, other states will likely follow suit to help protect citizens from being portrayed in sexually graphic content without their consent.
California Law on Deepfake Child Porn
Under state law, pornography depicting minors under 18 years of age is only illegal if it portrays a real child. When prosecutors attempted to prosecute cases involving AI-generated content, a state judge ruled that this material was legal under existing law. California’s AB 1831 and SB 1381 closed this loophole by prohibiting any porn created by AI that is based on imagery of actual children.
This exception will likely stand up under any First Amendment challenges because artists and AI systems can continue to generate material that does not depict actual children. For example, it is legal to create sexually graphic videos depicting underage cartoon characters.
These bills modified the state’s already existing child pornography laws, detailed under Penal Code 311 (PC) to include content created by AI. The severity of these charges varies based on the specific circumstances of the offense and the applicable subsection of the law. As a misdemeanor, child pornography is punishable by up to one year in jail, but felonies are punishable by up to eight years in prison. Additionally, anyone convicted of this crime can be sentenced to mandatory sex offender registration.
Because felony offenses count as a strike, those convicted for this level of offense will need to serve at least 80% of their sentence before they are eligible for parole. If someone has a prior strike on their record, their sentence will be doubled, and if they have two previous strikes, they may face life imprisonment for this offense.
Generalized Laws Prohibiting AI-Generated Pornography in California
Children are not the only ones protected by this new group of laws. SB 926 was added to California’s “revenge porn law” to include sexually explicit content depicting a real person that is created by AI, including face swapping or other deepfakes. Under 647(j)(4)(ii) (PC), it is now against the law to use AI to create sexually explicit material if it:
- depicts a real person
- could reasonably be interpreted as an authentic representation of the individual
- seems likely to cause the individual serious emotional distress
- the individual depicted does suffer distress
When a minor is depicted in the content, they do not need to have suffered from actual distress for the person accused of creating the material to face charges. This exception must apply as many minors may not be aware of the creation of this type of content, and it would be inappropriate to expose them to the material only to see how it affects them.
Unlike child pornography charges, those accused of this offense will only be charged with a misdemeanor, punishable by six months in jail for a first-time offense. Those who have a prior conviction may face one year behind bars.
If you have any questions about the legality of AI-generated pornography in California, please contact criminal defense attorney Peter M. Liss. Please call (760) 643-4050 to schedule a free initial consultation.
