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It's not the specific thing being made illegal, it's the underlying philosophy of "Better a dozen innocent men go to prison than one guilty man go free" I'm arguing against here. Most western justice systems operate under a principle of requiring guilt to be proven beyond a reasonable doubt, and if there is doubt then guilt cannot be considered proven and the person is not convicted.
The comment I'm responding to is proposing a situation where non-AI-generated images are illegal but AI-generated ones aren't, and that there's no way to tell the difference just by looking at the image itself. In that situation you couldn't convict someone merely based on the existence of the image because it could have been AI-generated. That's fundamental to the "innocent until proven guilty beyond all reasonable doubt" philosophy I'm talking about, to do otherwise would mean that innocent people could very easily be convicted of crimes they didn't do.
I guess we disagree on the criteria for innocent. I don't see possession of such images as an innocent act, especially now that it is impossible to verify what is real or fake.
We aren't disagreeing because that's not what I was addressing in the first place. The comment I'm responding to, from Dave, reads:
Emphasis added. The premise of the scenario is that possession of such images (ie, AI-generated CSAM) is not illegal. Given that, for purposes of argument, it follows that this would indeed be a valid defense. You'd need to prove in court that the CSAM pictures that you're charging someone with possessing are not AI-generated, in that scenario.
If you want to have a wider discussion of whether AI-generated CSAM images should be illegal, that's a separate matter.