' Aliya Crochetiere | MTTLR

Deep-Fake, Real Pain: The Implications of Computer Morphing on Child Pornography

The proliferation of “deep-fake” internet videos—in which a person in an existing video is replaced with the likeness of another—has called into question our most basic method for perceiving the world: using our own eyes. While the definition of deep-fake transforms as the technology develops, the video technology is generally regarded as the use of machine-learning to replace the face of one individual with another. Troublingly, deep-fakes have changed the landscape of digital pornography. Advances in computer morphing software have produced a new category of child pornography: “morphed” child pornography, in which a child’s face is virtually superimposed onto the body of an adult performing sexually explicit acts. Today, the rapidly changing field of technology has created an unresolved legal question: is “morphed” child pornography protected under the First Amendment? In February of 2020, the Fifth Circuit Court of Appeals weighed in on the debate in United States v. Mecham. When Clifford Mecham Jr. took his computer to a technician for repairs, the technician discovered thousands of images depicting the nude bodies of adults with faces of children superimposed. Once notified, the Corpus Christi Police Department seized several hard drives, revealing over 30,000 pornographic photos and videos with “morphed” child pornography. The Fifth Circuit affirmed Mecham’s conviction, but remanded his case to reduce his sentence, holding that the sentencing enhancement for “sadistic or masochistic conduct” does not apply to morphed child pornography as there is no depictions of “contemporaneous infliction of pain.” While child pornography is not protected under the First Amendment, virtual child pornography, sexually explicit images created with adults who look like minors or created solely by...