Even if no children were used to create the material, the DOJ is keen to establish a judicial precedent that exploitative materials are still illegal.

The DOJ claims  Steven Anderegg, 42,  used a fork of the open-source AI image generator Stable Diffusion to make the images, which he then used to try to lure an underage boy into sexual situations. The latter will play a central role in the eventual trial for the four counts of "producing, distributing, and possessing obscene visual depictions of minors engaged in sexually explicit conduct and transferring obscene material to a minor under the age of 16."

 The government says Anderegg's images showed "nude or partially clothed minors lasciviously displaying or touching their genitals or engaging in sexual intercourse with men."

The DOJ claims he used specific prompts, including negative prompts (extra guidance for the AI model, telling it what not to produce) to spur the generator into making the CSAM.

Cloud-based image generators like Midjourney and DALL-E 3 have safeguards against this type of activity, but Anderegg allegedly used Stable Diffusion 1.5, a variant with fewer boundaries. Stability AI told the publication that Runway ML produced a fork.

According to the DOJ, Anderegg communicated online with the 15-year-old boy, describing how he used the AI model to create the images. The agency says the accused sent the teen direct messages on Instagram, including several AI images of "minors lasciviously displaying their genitals."

Instagram reported the images to the National Centre for Missing and Exploited Children (NCMEC), which alerted law enforcement. Anderegg could face five to 70 years in prison if convicted on all four counts. He's currently in federal custody before a hearing scheduled for May 22.