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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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Dramatic explosion caught on video destroys homes, injures six, officials say

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Dramatic explosion caught on video destroys homes, injures six, officials say


A natural gas line leak triggered a dramatic explosion that destroyed a Bay Area home on Thursday, injuring six people and damaging several other properties.

At least one person was inside the home before it was leveled in the blast. The individual managed to escape without injury, but six others were hurt, including three who suffered serious injuries, Alameda County Fire Department spokesperson Cheryl Hurd said.

“It was a chaotic scene,” Hurd said. “There was fire and debris and smoke everywhere, power lines down, people self-evacuated from the home. … Someone was on the sidewalk with severe burns.”

The leak started after a third-party construction crew working Thursday morning in the 800 block of East Lewelling Boulevard in Hayward struck a Pacific Gas and Electric underground natural gas line, according to a statement from the utility.

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Fire crews were first dispatched to the scene at 7:46 a.m. after PG&E reported a suspected natural gas leak, Hurd said. PG&E officials were already on scene when fire engines arrived, and reportedly told firefighters their assistance was not needed, Hurd said.

Utility workers attempted to isolate the damaged line, but gas was leaking from multiple locations. Workers shut off the flow of gas at about 9:25 a.m. About ten minutes later an explosion occurred, PG&E said in a statement.

Fire crews were called back to the same address, where at least 75 firefighters encountered heavy flames and a thick column of smoke. Surrounding homes sustained damage from the blast and falling debris. Three buildings were destroyed on two separate properties and several others were damaged, according to fire officials.

Six people were taken to Eden Medical Center, including three with severe injuries requiring immediate transport. Officials declined to comment on the nature of their injuries.

Video captured from a Ring doorbell affixed to a neighboring house showed an excavator digging near the home moments before the explosion. The blast rattled nearby homes, shattered windows and sent construction crews running.

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Initially, authorities suspected that two people were missing after the blast. That was determined not to be the case, Hurd said.

“They brought in two cadaver dogs looking to see if anyone was still trapped under the rubble, and the dogs cleared everything,” Hurd said.

Brittany Maldonado had just returned from dropping off her son at school Thursday morning when she noticed a PG&E employee checking out her gas meter. He informed her that there was an issue and they had to turn off the gas to her home.

She didn’t think twice about it.

“About 45 minutes later, everything shakes,” she told reporters at the scene. “It was a big boom…first we think someone ran into our house—a truck or something—and then we look outside and it’s like a war zone.”

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The house across the street was leveled, Maldonado said. When she watched the footage from her Ring camera she said it looked as though a bomb inside the home had gone off.

“I’m very glad that no one lost their lives,” she said.

Officials with the Sheriff’s Office, PG&E and the National Transportation Safety Board are continuing to investigate the circumstances that led to the explosion.

In 2010, a PG&E pipeline ruptured in a San Bruno neighborhood, destroying 38 homes and killing eight people. California regulators later approved a $1.6-billion fine against the utility for violating state and federal pipeline safety standards.

Staff writer Hannah Fry contributed to this report

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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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