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A constitutionally dubious California bill would ban possession of AI-generated child pornography

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A constitutionally dubious California bill would ban possession of AI-generated child pornography


Back in 2016, a study found that it was increasingly difficult for subjects to distinguish between actual photographs of people and computer-generated simulations of them. The researchers suggested that development would complicate prosecution of child pornography cases. That concern has been magnified by rapid improvements in artificial intelligence, prompting a California bill that would, among other things, make it a felony to possess virtual child pornography when it qualifies as “obscene.” This provision seems constitutionally problematic in light of the U.S. Supreme Court’s holding that the First Amendment bars legislators from criminalizing the mere possession of obscene material.

Assembly Bill 1831, introduced by Assemblymember Marc Berman (D–Palo Alto) on January 12, aims to expand the state’s definition of child pornography to include “representations of real or fictitious persons generated through use of artificially intelligent software or computer-generated means, who are, or who a reasonable person would regard as being, real persons under 18 years of age, engaging in or simulating sexual conduct.” Since that new definition would pose obvious First Amendment problems as applied to constitutionally protected images, the bill specifies that such representations must meet the state’s definition of obscenity: material that “to the average person, applying contemporary statewide standards, appeals to the prurient interest”; “depicts or describes sexual conduct in a patently offensive way”; and “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

That definition of obscenity tracks the test that the Supreme Court established in the 1973 case Miller v. California. But four years earlier in Stanley v. Georgia, the Court unanimously rejected a state law that made it a crime to possess “obscene matter.” Writing for the Court, Justice Thurgood Marshall drew a distinction between that ban and other obscenity laws: “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

Berman evidently did not view the Supreme Court’s reading of the First Amendment as an obstacle to his goals, and he is by no means alone in that. Way back in 1996, Congress tried to ban “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The Supreme Court deemed that law unconstitutional in the 2002 case Ashcroft v. Free Speech Coalition, noting that “the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology” as well as “Hollywood movies, filmed without any child actors, if a jury believes an actor ‘appears to be’ a minor engaging in ‘actual or simulated…sexual intercourse.’”

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Congress tried again in 2003. The PROTECT Act covered any “digital image, computer
image, or computer-generated image” that is “indistinguishable” from “that of a minor engaging in sexually explicit conduct.” Unlike Berman’s bill, it did not require that such material qualify as obscene, making it even more constitutionally questionable. But it did include an obscenity test for another category of proscribed material: “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that “depicts a minor engaging in sexually explicit conduct.” And the law applied a less demanding test to any visual depiction of “a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal.” The PROTECT Act made such material illegal if it “lacks serious literary, artistic, political, or scientific value,” dispensing with the other two prongs of the obscenity test.

In 2008, the U.S. Court of Appeals for the 4th Circuit considered the case of a Virginia man, Dwight Whorley, who was charged with violating the PROTECT Act by “knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct.” Whorley argued that the law’s prohibition on receiving obscene images was “facially unconstitutional” because “receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia.”

The 4th Circuit rejected that claim. “Stanley‘s holding was a narrow one, focusing only on the possession of obscene materials in the privacy of one’s home,” the majority said. “The Court’s holding did not prohibit the government from regulating the channels of commerce.” The appeals court perceived the provision under which Whorley was charged as “focusing on the movement of obscene material in channels of commerce, and not on its mere possession.” So even though receiving, viewing, and possessing images are all essentially the same thing in the context of the internet, the appeals court concluded that Whorley’s prosecution did not run afoul of Stanley. But even that debatable reading does not seem to help Berman’s bill, which explicitly applies to “every person who knowingly possesses or controls” the newly prohibited images.

Whorley also argued that the PROTECT Act was “unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.” The 4th Circuit also rejected that argument, noting that cartoons are covered by the law only when they are “obscene” and that obscenity is not protected by the First Amendment.

That point does aid the defense of Berman’s bill, but again not insofar as it applies to mere possession. In other cases involving cartoons, such as manga, Simpsons porn, and “incest comics,” federal defendants have pleaded guilty to possession charges, avoiding a constitutional test.

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As applied to distribution, A.B. 1831’s obscenity requirement follows the approach that New York University law professor Rosalind Bell recommended in a 2012 law review article. Bell argued that the PROTECT Act provision covering digital images “indistinguishable” from the real thing, which does not require a finding of obscenity, is clearly unconstitutional.

In the 1982 case New York v. Ferber, Bell noted, “the Court established that the First Amendment does not extend to child pornography because the state has a special interest in protecting children from harm.” That interest, the Court held eight years later in Osborne v. Ohio, justifies even a ban on private possession of child pornography. But those cases involved actual child pornography, and the Court’s reasoning focused on the injury that its production and dissemination inflicts on the children whose abuse it documents.

“Post-Ferber child pornography regulation and court decisions interpreting this regulation have become untethered from the Supreme Court’s crucial limiting interest in protecting children from physical and emotional harm,” Bell wrote. “Increasingly, congressional action and court opinions reflect concerns about controlling private thoughts rather than preventing and punishing direct harm.”

Bell noted that Adrian Lyne’s 1997 film adaptation of “Vladimir Nabokov’s famous novel Lolita” went “straight to cable” because distributors worried that law enforcement agencies might deem it child pornography. “Writers and artists have explored the theme of adolescent sexuality in countless valuable works,” she wrote. “By banning non-obscene virtual depictions of child sexuality without reference to their social value, we exceed the First Amendment’s crucial dictates and jeopardize these works, including acclaimed films like Romeo and Juliet, The Tin Drum, American Beauty, and Taxi Driver.”

The “serious value” of such material presumably would protect it from Berman’s bill, which is why the obscenity requirement is crucial. But the ban on possession still flies in the face of the Supreme Court’s conclusion that “a State has no business telling a man” what he can look at while “sitting alone in his own house.” Although the Court later made an exception for pornography involving actual children, that exception does not encompass images that can be produced without violating anyone’s rights.

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Neil Thwaites promoted to ‘Vice President of Global Sales & California Commercial Performance’ for Alaska Airlines and Hawaiian Airlines – Alaska Airlines, Hawaiian Airlines and Horizon Air

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Neil Thwaites promoted to ‘Vice President of Global Sales & California Commercial Performance’ for Alaska Airlines and Hawaiian Airlines – Alaska Airlines, Hawaiian Airlines and Horizon Air


Thwaites will lead the strategy and execution of all sales activities for the combined Alaska Airlines and Hawaiian Airlines team. His responsibilities include growing indirect revenue on Alaska’s expanding international and domestic network, as well as expanding Atmos for Business, a new program designed for small- and medium-sized companies.

Thwaites joined Alaska Airlines in January 2022 as regional vice president in California. Since stepping into the role, Thwaites has significantly sharpened the airline’s focus and scale in key markets and communities across the state, strengthening Alaska’s position as we continue to grow in California. He will continue to be based at the company’s California offices in Burlingame. The moves take effect Dec. 13, with Thwaites also continuing to lead his current California commercial planning and performance function in addition to Global Sales.

Prior to Alaska, Thwaites worked in multiple positions within the airline industry, including a decade holding roles in London, New York, and Los Angeles for British Airways (a fellow oneworld member); most recently as ‘VP, Sales – Western USA’, where he was responsible for market development strategy and indirect revenue for both British Airways and Iberia across the western U.S.

Thwaites is originally from the United Kingdom and graduated from the University of Brighton with a double honors degree in Business Administration & Law.

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Tiny tracker following monarch butterflies during California migration

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Tiny tracker following monarch butterflies during California migration


SAN FRANCISCO (KGO) — When this monarch butterfly hits the sky it won’t be traveling alone. In fact, an energetic team of researchers will be following along with a revolutionary technology that’s already unlocking secrets that could help the entire species survive.

“I’ve described this technology as a spaceship compared to the wheel, like using a using a spaceship compared to the invention of the wheel. It’s teaching us so, so much more,” says Ray Moranz, Ph.D., a pollinator conservation specialist with the Xerces Society.

Moranz is part of a team that’s been placing tiny tracking devices on migrating monarchs. The collaboration is known as Project Monarch Science. It leverages solar powered radio tags that are so light they don’t affect the butterfly’s ability to fly. And they’re allowing researchers to track the Monarch’s movements in precise detail. With some 400 tags in place, the group already been able to get a nearly real time picture of monarch migrations east of the Rockies, with some populations experiencing dramatic twists and turns before making to wintering grounds in Mexico.

“They’re trying to go southward to Mexico. They can’t fight the winds. Instead, some of them were letting themselves be carried 50 miles north, 100 miles north, 200 miles the wrong way, which we are all extremely alarmed by and for good reason. Some of these monarchs, their migration was delayed by two or three weeks.

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According to estimates, migrating monarch populations have dropped by roughly 80% or more across the country. And the situation with coastal species here in California is especially dire. Blake Barbaree is a senior scientist with Point Blue Conservation Science. He and his colleagues are tracking Northern California populations now clustered around Santa Cruz.

MORE: Monarch butterflies to be listed as a threatened species in US

“This year, there’s it’s one of the lowest, populations recorded in the winter. And the core zones have been in Santa Cruz County and up in Marin County. So we’ve undertaken an effort to understand how the monarchs are really using these different groves around Santa Cruz by tagging some in the state parks around town,” Barbaree explains.

He says being able to track individual monarchs could help identify microhabitats in the area that help them survive, ranging from backyard pollinator gardens to protected open space to forest groves.

“So we’re really getting a great insight to how reliant they are on these big trees, but also the surrounding area and people’s even backyards. And then along the way around the coast, how they’re transitioning among some of these groves. And we’re looking for some of the triggers for those movements. Right. Why are they doing this and what’s what’s driving them to do that? So those questions are still a little bit further out as we get to analyze some more some more of the data,” he believes.

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And that data is getting even more precise. The tags, developed by Cellular Tracking Technologies, can be monitored from dedicated listening stations. But the company is also able to crowdsource signals detected by cellphone networks on phones with Bluetooth connectivity and location access activated. And they’ve also helped develop an app that allows volunteers, citizen scientists, and the general public to track and report Monarch locations themselves using their smartphones.

CEO Michael Lanzone says the initial response has been overwhelming.

MORE: New butterflies introduced in SF’s Presidio after species went extinct in 1940s

“We were super surprised to see 3,000 people download the monarch app. It’s like, you know, but people really love monarchs. There’s something that people just relate to,” says Lanzone who like many staffers at Cellular Tracking Technologies, has a background in wildlife ecology.

A number of groups are pushing to have the monarchs designated nationally as a threatened species. If that ultimately happens, researchers believe the tracking data could help put better protections in place.

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“They’re highly vulnerable to, you know, some of the different things that that that we as humans do around using pesticides and also potentially cutting, you know, cutting down trees for various reasons. Sometimes they’re for safety and sometimes it’s, you know, for development. But so having an understanding of how we can do those things more sensibly and protect the places that they need the most,” says Point Blue’s Barbaree.

And it’s happening with the help of researchers, citizen scientists, and a technology weighing no more than a few grains of rice.

The smartphone app is called Project Monarch Science. You can download it for free and begin tracking.

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Poisonings from ‘death cap’ mushrooms in California prompt warning against foraging

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Poisonings from ‘death cap’ mushrooms in California prompt warning against foraging


After a string of poisonings from “death cap” mushrooms — one of them fatal — California health officials are urging residents not to eat any foraged mushrooms unless they are trained experts.

Doctors in the San Francisco Bay Area have blamed the wild mushroom, also called Amanita phalloides, for 23 poisoning cases reported to the California Poison Control System since Nov. 18, according to Dr. Craig Smollin, medical director for the system’s San Francisco division.

“All of these patients were involved with independently foraging the mushrooms from the wild,” Smollin, who is a professor of emergency medicine at the University of California, San Francisco, said at a news conference Tuesday. “They all developed symptoms within the first 24 hours, including nausea, vomiting, diarrhea and abdominal pain.”

Smollin said some of the patients were parts of cohorts that had consumed the same batch of foraged mushrooms. The largest group was about seven people, he said.

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All of the patients were hospitalized, at least briefly. One died. Five remain in hospital care. One has received a liver transplant, and another is on a donation list awaiting a transplant, Smollin said. The patients are 1½ to 56 years old.

Mushroom collectors said death cap mushrooms are more prevalent in parts of California this season than in years past, which could be driving the increase in poisonings.

“Any mushroom has years that it’s prolific and years that it is not. … It’s having a very good season,” said Mike McCurdy, president of the Mycological Society of San Francisco. He added that the death cap was one of the top two species he identified during an organized group hunt for fungi last week, called a foray.

In a news release, Dr. Erica Pan, California’s state public health officer, warned that “because the death cap can easily be mistaken for edible safe mushrooms, we advise the public not to forage for wild mushrooms at all during this high-risk season.”

Dr. Cyrus Rangan, a pediatrician and medical toxicologist with the California Poison Control System, said the “blanket warning” is needed because most people do not have the expertise to identify which mushrooms are safe to eat.

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Still, he said, “it’s rare to see a case series like this.”

The California Poison Control System said in a news release that some of the affected patients speak Spanish and might be relying on foraging practices honed outside the United States. Death cap mushrooms look similar to other species in the Amanita genus that are commonly eaten in Central American countries, according to Heather Hallen-Adams, the toxicology chair of the North American Mycological Association. Because death caps are not often found in that region, foragers might not realize the potential risk of lookalikes in California, she said.

Anne Pringle, a professor of mycology at the University of Wisconsin-Madison, said there is a litany of poisoning cases in which people misidentify something because their experience is not relevant to a new region: “That’s a story that comes up over and over again.”

An Amanita phalloides mushroom in Hungary. The species originated in Europe and is invasive in the U.S. Anne Pringle

Over the past 10 years, mushroom foraging has boomed in the Bay Area and other parts of the country. At the same time, information resources about mushroom toxicity — reliable and otherwise — have proliferated, as well, including on social media, phone apps and artificial intelligence platforms. Experts said those sources should be viewed with skepticism.

Longtime mushroom hunters maintain that the practice can be done safely. McCurdy, who has collected and identified mushrooms since the 1970s, said he bristled at the broad discouragement of foraging.

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“No, that’s ridiculous. … After an incident like this, their first instinct is to say don’t forage,” he said. “Experienced mushroom collectors won’t pay any attention to that.”

But McCurdy suggested that people seek expertise from local mycological societies, which are common in California, and think critically about the sources of information their lives may be relying on.

Pringle and McCurdy both said they have seen phone apps and social media forums misidentify mushrooms.

“I have seen AI-generated guidebooks that are dangerous,” Pringle said.

The death cap is an invasive species that originated in Europe and came to California in the 1930s, most likely with imported nursery trees. The mushroom is usually a few inches tall with white gills, a pale yellow or green cap and often a ring around the base of its stalk.

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The species is found across the West Coast and the Eastern Seaboard, as well as in Florida and Texas, according to Hallen-Adams, who is also an associate professor of food science at the University of Nebraska-Lincoln.

In California, it typically grows near oak trees, though occasionally pines, too. The mushroom’s body is typically connected to tree roots and grows in a symbiotic relationship with them.

The toxin in death cap mushrooms, called amatoxin, can damage the kidneys, liver and gastrointestinal tract if it is ingested. It disrupts the transcription of genetic code and the production of proteins, which can lead to cell death.

Hallen-Adams said the U.S. Poison Centers average about 52 calls involving amatoxin each year, but “a lot of things don’t get called into poison centers — take that with a grain of salt.”

Amatoxin poisoning is not the most common type from mushrooms, but it is the most dangerous, she added: “90% of lethal poisonings worldwide are going to be amatoxin.”

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It takes remarkably little to sicken a person.

“One cubic centimeter of a mushroom ingested could be a fatal dose,” Hallen-Adams said.

Symptoms of amatoxin poisoning often develop within several hours, then improve before they worsen. There is no standard set of medical interventions that doctors rely on.

“It’s a very difficult mushroom to test for,” Rangan said, and “also very difficult to treat.”

One drug that doctors have leaned on to treat some of the California patients — called silibinin — is still experimental and difficult to obtain.

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“All of our silibinin comes from Europe,” Hallen-Adams said.

Death cap mushrooms have continued to grow abundantly since their introduction, and Pringle’s research has shown that the species can reproduce bisexually and unisexually — with a mate or by itself, alone — which gives it an evolutionary advantage.

“If Eve can make more of herself, she doesn’t need Adam,” Pringle said. “One of the things I’m really interested in is how you might stop the invasion, how you might cure a habitat of its death caps. And I have no solutions to offer you at the moment.”



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