H.B. 289 Child Sexual Abuse Material Amendments: transcript

Ahead. Thank you Mr. Chair, members of the committee. Um, I have a guest here with me. I'll let him introduce himself in case we have any technical questions that need to be answered.

Uh, Mr. Chair, members of the committee, my name is Carl Holland. I'm the Executive director of a statewide Association of prosecutors. Right, thank you. Um, if you were on this committee a couple of years ago, you may remember that I was here before you working on child sex abuse material, protecting our children, um, in the AI space as far as CSAM is involved. Um, and what we have learned in those two years is that technology has outpaced the law. Um, and so what we're doing is we're coming back and we're filling in holes and gaps in the law. Um, and so we have, uh, worked on creating some new definitions of what A ICA is so we can catch, um, those who are operating, um, and who are sadly, um, viewing this, this material, um, that we can provide an, an avenue for them to be prosecuted. Um, we know that a IC Sam harms real children. Um, it feeds an industry that harms children. It can cause escalation and it can result in action. Um, so this is just simply a law that mirrors what's happening nationally, um, and in other states. And we're just follow following in line with that. Um, but happy to answer any questions that you have. I would appreciate your support for this.

Yes. Okay. Okay.

Hello, Dan Strong here representing the sentencing commission today. Um, we discussed this bill, uh, a couple weeks ago and kind of took another look at it today. And, uh, the commission, although we don't take public positions on bills, we're we're supportive of the approach and the, um, uh, and, and appreciate the representative's attention to this like, really complex, challenging and new area of, uh, criminal behavior. The bill seems to take, uh, a thoughtful approach at trying to kind of distinguish between apparent imagery and, uh, other types of AI manipulated images in a way that that, that we think will, um, will allow 'em be prosecuted. I just wanted mention also that, uh, our, our subcommittee Somac, uh, also reviewed this and, uh, we're generally supportive of, of the way it's been written. So thank you. Thank you.

Hi, represent, Uh, Steve Burton representing the Utah Association of Defense Attorneys. Um, so, uh, this bill has a lot of moving pieces and, um, we're concerned mostly about one part of it. So, uh, our understanding is that the bill kind of creates three different categories of CS a material. One is where there's an identifiable victim, um, a an actual child that's depicted another category where, um, you don't really have to prove whether or not it's a real child or not. Um, but you can prosecute under that. And then there's one category called a parent, uh, child sexual abuse material, a parent SA and, um, from what I can tell that describes purely AI generated, uh, CSA material. And so as defense attorneys, obviously one of our, one of our jobs is to advocate for proportionality and sentencing and punishment. And so our only i, I guess suggestion or request would be that we kind of recognize that in those types of cases where it's, um, shown that it is in fact not depicting a, an actual victim and it's just purely AI generated and there's not a specific, uh, child or individual depicted, um, that in those cases, maybe we look at that as possible, um, that that is possibly something that should be punished to one lower degree. So, so in any case where there's an actual victim, there's an actual child depicted, we keep it as is, but uh, we kind of recognize also if it's just purely computer generated, that that might, uh, be proper to make that one lower degree of crime. So on a distribution instead of a first degree felony, it'd be a second degree on a possession instead of a second degree felony, it would be a third degree felony. So in all of those cases, it would still be a felony, um, but it would carry a slightly lower, um, category of punishment.

So that could, that could go in a few buckets. Um, I Are you saying this is pure, it's it's a real child that is then been put into an AI generated image For, for clarification? Yes.

That would be CS a because there's a real child depicted in the image.

Okay. Yeah. Yeah. We're concerned about the images that, um, aren't, as you say, depicting a real child, even though it's AI generated. I mean, that's something that's happening these days, but if, but if there's, as I said, no, um, actual person, um, it's completely created out of ai, that's where we think that probably it would be proper to drop it by one degree.

Yeah. I'm Seth Stewart. Um, I'm, I'm opposing this bill, uh, for the same reason I opposed SB 1 44 last year. Uh, the requirement online 1756, uh, alters the evidentiary standard of and proof of guilt quite substantially. It says if the actor intentionally or knowingly possesses views or accesses with the intent to view, et cetera. Um, this is no fault language right here, that there is no, uh, finding of intent. There is no proof of intent required. And this is a very severe matter, especially for a material that is handled so severely by the law as this is, uh, an image generation model can produce this type of material without a user asking for it. It's possible for third parties in including state-sponsored actors to upload through various attack vectors to someone's device, this kind of material onto their device. You can download a program that has malware that installs this onto your device. And so you can quote, knowingly possess it while not having actually intended to create or view or possess any of this kind of material. This is an extremely serious matter because the federal government Congress has been considering bills that would actually penalize possession of this type of material with a death penalty or life imprisonment. And so if you, if you pass this bill as is, you'll be punishing victims of this type of activity without any, any, uh, requirement to demonstrate proof of intent. And so this could potentially, and this is a very serious matter, it could apply the death penalty to individuals who have done absolutely nothing wrong. And just the, the federal government has admitted it has the capability to plant materials on people's digital devices. And it could include this kind of, this kind of material we're granting the federal government bottomless power to kill anyone it wants just by planting this material on one of their devices. And then we immediately find guilt automatically per this bill, just for mere quote, knowing possession or viewing it as, as generated by some program that was beyond their control or has downloaded to their device without any intent. So I'm asking you to be honest about the real ramifications of this bill, and I urge you not to pass it because of these requirements, these, these constraints, and there are ways to deal with criminal behavior. I would submit, if you want to stop the spread of sexual abuse materials, there's a very urgent and dire need to strengthen families. And due consideration has not been made by this legislature to promote and pass legislation, which strengthens and maintains the family as the fundamental unit of society. Instead, there's this increasing pattern of use or patient of power erasure of safeguards, such as trial by jury and altering the evidentiary requirements to prove guilt. So I urge you to oppose this bill. Thank you

Let you go. Yeah. I'm Stewart from American Fork and I'm just representing myself and all the people who could be accused by this.

We need to move house amendment one, right? We do. I would make that motion.

It's a good amendment. I love that one. All right. I mean, if someone wants to make another one so I can do the second amendment thing again, I'd appreciate it.

It's a good amendment. Substantive. Thank you.

Keep at it. I move that we favorably recommend HB 2 89 as amended.

Uh, it's an important issue and it's a good bill. Thank you for working on it.

Yes. Thank you. Thank you for the, the discussion. This is a difficult issue and one that I am passionate about. It is important to protect our children. And, and I would just say that whether, um, something is completely synthetically AI or there's a real child, there is harm involved, there's harm that, that happens to our children. We are seeing, um, a proliferation of synthetic ai, child, uh, sexual abuse, uh, materials all over the internet. If you look up studies, internet, wash dogs, all kinds of, we have ncmec, all kinds of people are saying this is, it's exponentially growing like 15 fold online. Um, and so we have a real problem and some, this is something that we can do to take a real step forward and put ourselves in line with other states, um, and with, uh, national law. Thank you.

So just the p the reason I'm asking everybody is I've had, I, I had four bills in house committees right now, but all the house sponsors like the wonderful representative Faye offered to present for me. So thank you. You're Welcome. And if, if she hadn't, I would be gone right now and we wouldn't have a quorum. So this is working out really well. Yes. Happy to help.

Yes. Thank you. Um, as you may recall, Mr. Chair, we were here a couple years ago talking about making a ICA illegal and classifying as CS a m. We did do that. We passed a bill, but as you know, AI is developing rapidly. We're watching that case law play out, and there are holes in that law. So this is just aimed to fill those holes in the law. Um, so what this does is it creates a couple of new categories, um, that those who are viewing a IC SAM can fall into. Um, this is just important because it keeps us, um, up to date with what is trending nationally, um, and putting us in line, um, with national code. Um, and then also just keeping, keeping kids safe. We all know the importance of this. I don't think I need to belabor the issue of why we, um, any CS a m should, should not be tolerated. Um, I think we all know that. So I'm happy to answer any questions about the bill if you have any questions. Thank you. I don't have any questions. In case anybody doesn't know CS a m stands for Child Sex Abuse Materials. Thank you.

Um, yes. I, if you have questions, I also have Carl Holland here with me who has, um, done been, been an attorney in this area for years and years and can answer any technical questions And, um, really increase the ags success on CS m.

Uh, hello. Committee, Steve Burton from the Utah Defense Attorney Association. Um, the, the one and main concern that we have with this bill is that it creates a new category called a parent child sexual abuse material. And it's basically a parent CSA is something that is 100% generated by ai. And you're saying A-P-P-A-R-E-N-T? Um, a NTI believe. A parent, yeah. A-P-P-A-R-E. So we're not talking about parents, we're talking about apparent, Apparent CS a material. And, uh, essentially it's, it's 100% AI generated and does not necessarily depict any specific person. Could be a completely fictional 100% ai. And, um, our only request and suggestion on this would be that we treat that slightly less, uh, serious than the actual CSAM involving real children. And I think that, um, proportionality and good judgment would say that yes, we probably should treat a penalty slightly different if it doesn't involve an actual child victim that was, uh, portrayed in the CSAM if somebody didn't actually have to take a picture of a child or use a specific person. Um, and so for example, distribution of CSAM right now is a first degree felony in most cases, and possession is a second degree felony. We would simply recommend that if it's 100% AI completely fictional, that that is one degree lower. We're not saying that you should decriminalize it. Both of those would still be felonies. We're simply saying that it probably does not cause the same amount of harm as, uh, somebody who actually photographed or, or videotaped a child. Um, we think that that would allow for some proportionality and distinction between the two.

Thank you Mr. Chair Committee. Dan Strong with CCJJ and the sentencing commission. CCJ did vote to support this bill. In our discussion, we focused, uh, on the, you know, this is an emerging, um, area of, of the law and of criminal conduct. And we think this bill did some thoughtful work in trying to categorize and distinguish the different types of, uh, images that may be out there and still allow, uh, police and prosecutors who investigate, prosecute those. And then potentially, you know, I think, I think the law is designed also in anticipation of certain legal challenges in making sure that if one of those is successful, that it wouldn't, um, take down the whole structure. So we appreciate the sponsor's thoughtful work on those pieces. Um, one of their thing I just mentioned from our, uh, somac committee that, uh, includes a, a lot of folks with expertise in, in, uh, sexual misconduct and risk. Um, on the last point, you know, whether it's a, an AI generated image or a real image, uh, the risk that the individual presents is the same. So they're what's going on in their head, um, and how that would play out in a risk analysis. Somac informed us that, that whether the child's real or not should not influence that analysis. And so that I think, helped, uh, gain some support from CCJJ. Thank you.

The impact on the victim. The impact on the victim? Yeah. I'm sure there are. I mean, I'm certainly like a aggravated assault, uh, where there's a more serious injury than a, you know, than a, than a not than a regular injury that becomes level up, is that what you mean? Like the harm to the victim is greater so the offense is greater? Yes.

Chair member of this committee. My name is Felix Espinoza and I'm here on behalf of Utah Rational Sex Offense, uh, Utah for rational sex offense laws. In support of HB 2 89, we support the legislator's intent to address this emerging threat and acknowledge that this bill represents a necessary response to technological developments that have created new vulnerabilities for children. However, U-T-R-S-O-L expressed a significant concern regarding the bill's expansion of Utah sex offender registry through the addition of three new registrable offenses Prior to 20 seventeen's legislative session. The list of registrable offenses had not changed since 2011 when it grew to 30 enumerated offenses at that time. Since 2017, there are now 42 registrable offenses. By next week, we will have 46 HB 2 89 ads. Three. While HB 2 21 coercion amendments Bill separates one statute into two. We solidly support HB 2 21. However, over the course of nine years and less than a decade, 16 new offenses will have been added to the sex offense registry. This is not to imply or to minimize the harms that HB 2 89 seeks to address. However, U-T-R-S-O-L is concerned about the capturing now combined to the, uh, is concerned about in the increasing scope in which Utah Sex offender registry is capturing now combined to the sex kidnap and child abuse offender registry. We urge this committee and this legislator to consider not only the necessity of each new addition to the registry, but the cumulative effect of this expansion. We ask this committee to support a review of the registry criteria alongside the passage of this bill so that Utah's registry remains a meaningful evidence-based tool for protecting our communities. Thank you.

Alright, thank you. Yeah. My name is Seth Stewart, representing myself from American Fork. Um, this bill is very concerning because it deletes the men's rea requirement for guilt line 1756 on the bill. Uh, it says that an actor commits possession of apparent CSAM if the actor intentionally or knowingly possesses views, accesses with intent to view or maintains access to view apparent CS a m. And, uh, so, so, so first question is just why, why is there that lever there to say, to differentiate and say it's either intentionally or knowingly, um, that that eliminates practically speaking, the requirement for intent and further? So let's imagine, let's ask this question. What happens when an image generation AI system, whether in the cloud or on somebody's device, violates user instructions and produces an image that apparently satisfies the criteria in this bill? Should he be held responsible or culpable as though he had intent to view? He has it on his device and he knows that he has it on his device. He, he's, he's viewed it already. He's exposed to it. He's a victim of this. Uh, would this bill criminalize him? Would it criminalize be be being victimized in that way? What happens when a state actor gains access to your device and plants such material on your device? Is, is that another, uh, prosecutable offense under this, uh, the sufficiently similar Right. You're in to try to determine that someone is like a real person. This could apply subjectively in a very high percentage of cases to practically anybody. You could find somebody on earth who, that it looks like. And the affirmative defense is also vanishingly narrow. Um, and is is very subjective. The, the two year, uh, age difference window is, uh, that's extremely difficult to judge from artificial images as, as well as, uh, you know, the identity problem. So those are some of my concerns with that I job position to bill. Thank you.

Certainly. Um, so that's already the, the law right now. So we decided two years ago that, uh, AI created CSAM is, is the same as is real child CSA that's depicting a real child. Um, You mean the same penalty? Yeah. Oh yes. Sorry. Same penalty. Um, so we're, we're not changing that or enhancing that. We're just, we're creating a new definition, um, because there's such a flood, um, online that it's so hard to tell what is real, what's not real. Um, so we're just creating new definitions, um, to help delineate, um, whenever a person is being, uh, is being prosecuted that they may know where to put 'em. Okay. I didn't say that very well. Carl has an another he can add to that.

Uh, yes. Mr. Chair, uh, thank you for the question. Uh, as currently written,

Carl Holland, executive Director of Statewide Association of Prosecutors. It's currently written, uh, a person could be prosecuted for possession of child sex abuse material, whether they possess an image of a real child or a virtual child that has been created, but we're now terming a parent CS a, the penalty is the same. This version is actually more restrictive in what we could charge in this virtual world because under the statute as it currently exists, you could prosecute someone who possesses AI generated images of a 17-year-old fictitious child. This statute actually moves the bar so that we're more clear about where the lines are and we're reducing it to something that is clearly a child by, uh, limiting it to images that depict those who appear to be under the age of 12. And so this actually a step backwards instead of a step forwards in in that ratchet.

Thank you for the question. Uh, un on line 1608 and 1609, uh, the minor for a parent child sex abuse material must be sufficiently similar to a real minor that a reasonable person viewing. It would conclude that the depiction is of a real minor. Okay. So that would

I would agree. Alright.

Um, I Juab. I just think it's important that as a state we, uh, send the message that we aren't gonna to tolerate, uh, exploitation of children.

Yes. Thank you, Mr. Speaker. Uh, if you'll recall, two years ago in 2024, we passed a couple of bills that made artificial intelligence generated, um, child sex abuse material illegal. Since then, we have found some of the holes and the gaps in law enforcement. And so this is just filling in some of those holes and gaps, creating a couple new categories, a parent child, sex abuse material, um, and obscene materials to help us ensure that we can enforce, um, those who are distributing and producing AI generated child sex abuse material. And with that, I'm happy to answer any questions.

Um, hold on one quick second. So we're Mr. President, we'll talk about maybe some delicate materials for just a moment. Um, CSAM Child sexual abuse material. Um, and as I do so, I'll try to be as, as delicate as I can and I think I can do so. Um, our laws, uh, current definition of CSAM includes both REAL and AI generated, uh, for minors. This, uh, combination is problematic since it could lead to future challenges in court, which could then result in entire statute being overturned or convictions being lost. HB 2 89 fixes that problem to by dividing CSA into three categories or three buckets, if you will, where, um, which are real miners in one bucket. Realistic AI miners in another bucket, and then obscene depictions of miners who may or may not be real in another bucket. So first CS a M, this is CS a m of courses of real miners will stay the same and retain the same offenses as and penalties. These are the first degree felony for distribution and production and a second degree felony for possession. Then the second bucket, this will be if you will, the A-I-C-S-A in the bill. We would call it apparent CS a m. It only covers depictions of children who appear prepubescent or under 12 years old according to a reasonable person. Um, the penalties of possession, distribution and production of a parent CS a m are the same as the current law. So it may appear as we're, uh, increasing penalties, but we're just mirroring the same thing for real versus CS a M. And then the third bucket or category would be labeled as obscene C-C-S-A-M, which is the exact same definition of obscenity as the Millard versus California test. Uh, this case provided that distributing any type of ACE material is illegal regardless of whether or not it's real minors involved. This bucket will keep, uh, keep, uh, will help capture rather material that we may find difficult to prosecute under the other two buckets that I previously described under this bucket or under this bill, distributing, producing, or possessing with the intent to intent to distribute obscene CSAM will be a second degree felony. Current law says that distribution of obscene materials generally is a third degree felony. So that is, uh, an increase which includes depictions of adults and minors and practices, uh, uh, designated obscene CS a M distribution as a secondary felony. And this bill will not really be an enhancement. In the past, if the obscene materials looked like they contained a minor, it usually was a real minor, therefore the actor would likely had been charged under the current CSAM law, which would've been a first degree felony. With the growth of AI and technologies, that has become more difficult to prove a real minor is depicted. So these offenses would capture materials that previously would've been a first degree felony. In other words, while the bill now specifies the distinguishing or distributing rather obscene materials, depicting a minor is a second degree felony, it's likely it doesn't increase any penalties in the practice because the materials probably fell under the CAM statute, not the obscenity statute. With that Mr. President, that concludes my presentation.

Shall house bill two eighty nine pass Roll call vote. Senator Spry Lein Brammer Bus Culmore Escamia Fillmore Grover Harper Hankins Aye. Ipson Johnson Johnson. Aye. Juab McKay. Mikel Milner. Musselman Aye. Owens Aye. Pitcher Plum rebe A Sandal Stevenson Stratton Vickers Aye. Weiler Will Wilson Winterton Aye. President Adams Aye.