The Volokh Conspiracy
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Colorado Child Porn Law Didn't Ban Deepfake Porn Until Recent Amendments, Court Holds
From In the Interest of Juvenile: S.G.H., decided yesterday by the Colorado Supreme Court, written by Justice Carlos A. Samour, Jr.:
S.G.H., a young teenager, … is accused of using a generative-AI tool to blend authentic images of three classmates' actual faces and clothed bodies with computer-generated images portraying naked intimate body parts to make it appear as though the classmates are nude….
Every state has laws prohibiting the nonconsensual distribution of authentic intimate images, and the federal government recently enacted a similar measure. But "few laws in the United States" specifically protect minors from exploitation through the use of generative AI tools, and many current statutes do not cover computer-generated explicit images that use real people's faces. [The court doesn't mention the federal TAKE IT DOWN Act, enacted in May 2025, which broadly bans nonconsensual deepfake porn. -EV] …
Colorado is among those states that have been slow off the mark to address the use of explicit images created with generative AI. To our legislature's credit, it recently stepped up and bridged the generative-AI gap that existed in the relevant statutes. But that was after S.G.H. had been charged in this case with six counts of sexual exploitation of a child (two counts for each victim), so any recent legislative amendments cannot serve as a lifeline for the People here.
The People nevertheless contend that they need no rescuing by the recent amendments because the law in effect on the dates of the charged offenses prohibited S.G.H.'s alleged conduct. According to the People, the amendments merely clarified that such conduct is prohibited. We disagree….
All six charges of sexual exploitation of a child (three charged pursuant to subsection (3)(b) and three charged pursuant to subsection (3)(b.5)) require proof of "sexually exploitative material." … As of December 2023, when the offenses charged allegedly occurred, our legislature defined "sexually exploitative material" as
any photograph, motion picture, video, recording or broadcast of moving visual images, livestream, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct….
The images recovered from S.G.H.'s email account are not photographs, motion pictures, videos, recordings or broadcasts of moving visual images, livestreams, prints, negatives, or slides. That leaves "mechanically, electronically, chemically, or digitally reproduced visual material." As the People impliedly agree, the images collected from S.G.H.'s email account were not "mechanically, electronically, [or] chemically" reproduced. No, the images are digital. But while they are digital, there is no evidence in the record that they were "reproduced." This is the death knell in the People's case: Even according to the People's own brief, S.G.H. prepared, produced, made, possessed, and/or controlled the images found in his email account; there is no assertion in the answer brief that S.G.H. reproduced the images at issue—digitally or otherwise.
{While the composite images allegedly created by S.G.H. may appear photographic in form, we perceive a significant distinction between those images, which synthesized computer-generated and original properties, and a photograph. A "photograph" is a "picture or likeness" obtained by "photography," which refers to the process of producing images through the precise action of exposing "radiant energy" on a "sensitive surface" such as a film or an optical sensor. By contrast, the images found in S.G.H.'s email account did not originate from photographic processes.} …
Reproduction in this context implies fidelity to the source. Indeed, photographs, motion pictures, videos, and the other items listed in subsection (2)(j) all faithfully capture a visual image. They do not distort, manipulate, modify, or fabricate a visual image. In this case, we deal with distortion, manipulation, modification, and fabrication, not reproduction: The images stored in S.G.H.'s email account are fabricated images that were digitally produced by distorting, manipulating, or modifying photographs.
Because the People did not present any evidence that the activity S.G.H. engaged in involved the digital reproduction of images or otherwise met the definition of sexually exploitative material, they failed to establish probable cause to believe that he violated either subsection (3)(b) or subsection (3)(b.5). Therefore, we conclude that the district court erred in finding probable cause as to all six charges….
[W]e do not condone S.G.H.'s alleged conduct. Computer-generated explicit images often have a devastating impact on victims. We understand, of course, that our decision today means that the People will not have an opportunity to seek justice for the three named victims. Unfortunately, it took our legislature time to catch up to the recent advances in generative-AI technology. But regardless of the reason for this delay, S.G.H. cannot be penalized based on statutory provisions that came into effect after he allegedly engaged in the appalling conduct in question. As undesirable as it may be to deprive the named victims of their day in court in this proceeding, it is the result the law requires and thus the one we reach. In so doing, we are ever mindful that "[r]esult-oriented justice is … directly contrary to the concept of the rule of law."
Michael S. Juba (The Juba Law Office, PLLC) represents defendant.
