The federal courthouse in Sioux Falls. (John Hult/South Dakota Searchlight)
A Rapid City man was recently sentenced to six years in federal prison for the possession of computer-generated child pornography.
Less than a month before that, another man was found guilty of the same crime, and still another was sentenced to five years for it last October. One other case involving artificial depictions of child exploitation remains pending in the U.S. District of South Dakota.
The cases were prosecuted through a statute used rarely in the state until last year. Each represents state-level evidence of a growing concern for law enforcement around the country as image generation tools that use artificial intelligence (AI) proliferate. Last month, The Washington Post reported on federal officials’ concerns that a flood of computer-generated child pornography threatens to complicate law enforcement’s ability to locate and identify real victims, who might be found somewhere in the virtual mountain of lifelike-but-simulated imagery shared across the internet.
Each of the recent cases in South Dakota landed in federal court, because it’s the only option for prosecutors who uncover electronic imagery of child exploitation.
State law doesn’t prohibit the possession of child pornography unless it depicts a real person. Comics, videos and photos of child pornography — whether drawn, painted, produced with electronic software like Photoshop or generated by AI image engines — are technically legal under state law.
Attorney General Marty Jackley may work to change that in the coming legislative session, and he expects to ask for additional funding for the law enforcement agencies tasked with sifting through AI or otherwise artificial pornographic content to search for real victims.
The issue came up at the last conference of the U.S. Attorney General’s Alliance, a multi-state group of prosecutors for which Jackley serves as chair.
In South Dakota, as in other states, concerns are rising as to whether law enforcement has the tools it needs to address the new wave of exploitative imagery.
“There’s a federal statute on this that’s being utilized, but we need to be asking, ‘Should we in South Dakota be doing something to get ahead of this and pass our own statute?’” Jackley told South Dakota Searchlight.
South Dakota cases grow in 2022
The federal case against 38-year-old Michael David Quincy, sentenced to six years in prison earlier this month, was built with the help of local law enforcement in Pennington County but ultimately prosecuted by the office of U.S. Attorney Alison Ramsdell.
On March 9, Quincy inked a factual basis statement admitting his criminal behavior. Twenty days later, he pleaded guilty to federal charges of receipt of child pornography and obscene visual representations of the sexual abuse of children.
According to court documents, Quincy’s personal electronics were searched in February after a tip from the National Center for Missing and Exploited Children that came in December of 2021.
Rapid City investigators found images of nude child sex dolls, a history of web searches for child pornography terms and an image-sharing program called “Pixiv” on Quincy’s phone in their initial meeting with him on Feb. 14, and brought the phone back with them to the Internet Crimes Against Children Task Force office in Rapid City. While there, they saw that the device’s search history was being remotely deleted.
The detectives returned a few days later to execute a search warrant, at which point Quincy admitted to deleting his search history from afar. He also “admitted he looked for child sex dolls out of ‘curiosity and stupidity’ and said he did not know animated CP [child pornography] and child sex dolls were illegal,” according to court documents.
The investigators found hundreds of images of “computer-generated” child pornography on Quincy’s phone and laptop, as well as two images of real child pornography.
It affects families, it affects spouses, it affects society. And it affects prosecution as we try to sort out AI from real victims, and there are costs to that.
– South Dakota Attorney General Marty Jackley
The sources and origins of the computer-generated imagery are unclear from the court record. Pixiv, the program found on Quincy’s phone, is a Japanese art-sharing platform. The company recently announced a new policy that disallows the sharing of AI-generated imagery in “response to growing issues surrounding the misuse of AI technology,” according to the gaming news website Automation Media.
The case is relatively novel for South Dakota’s federal court system. The “visual depiction” law used to pursue charges against Quincy has only been applied eight times in South Dakota since 2000, according to a docket search of publicly available federal cases.
By contrast, another federal statute relating to child pornography with real-life victims was tied to at least 94 cases in that time period.
The proliferation of computer-generated pornography is reflected in the eight recent cases. Four were filed in 2022, with two others filed in 2017 and 2018, and the remaining two filed against a single defendant in 2003. The recent cases involve computer-generated imagery; some of the older cases involved comics and drawings.
Quincy pleaded guilty to the visual depiction charge, as did another 2022 defendant named Dean Russell Schallenkamp of Deadwood, who had 10 computer-generated child porn images and one video in addition to more than 81,100 images of child pornography. Schallenkamp was sentenced to five years in April.
Rapid City’s Michael Raymond Holst, meanwhile, was found guilty of the computer-generated imagery charge by a jury in late June and awaits sentencing, while a man named William White Eyes awaits trial on similar charges.
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State law enforcement role
The intermixing of imagery involving real victims with computer-generated ones in the Schallenkamp case speaks to one reason such investigations involve local, state and federal officers, according to Sioux Falls Police Department spokesman Sam Clemens.
Sioux Falls officers are among those assigned to the state’s Internet Crimes Against Children (ICAC) task force, which cooperates across jurisdictions in cases of child sexual exploitation.
A case may ultimately need to be prosecuted under federal law, Clemens said, but each tip to ICAC is investigated across agencies to determine the extent of the potential criminal activity.
“If there’s AI-generated pornography, there’s a good chance they’ll find real pornography,” Clemens said.
Jackley, who served as U.S. attorney for South Dakota until 2009, said computer-generated imagery can fuel predation and feed an addiction to the kind of pornography tied to real victimization. He compared it to alcoholism or drug addiction, which take a toll even when there are no legally recognized victims.
“When you look at addiction, that holds in relation to this topic. It affects families, it affects spouses, it affects society,” Jackley said. “And it affects prosecution as we try to sort out AI from real victims, and there are costs to that.”
Jackley said he’s working with lawmakers to decide what form a pitch to criminalize AI- or computer-generated child pornography might take, with consideration given to the stiffness of penalties in such cases compared to those with child victims.
He also aims to ask supportive lawmakers to re-introduce a bill he proposed last year. That bill would have assessed fees to convicts whose cases required a digital investigation of items — like cell phones — to help pay for the technology that ICAC detectives will need as more AI-generated imagery is created and distributed.
Senate Bill 54 died on the Senate floor. Jackley expects it to return in another form, and he hopes the Legislature gives it additional consideration in light of an AI future.
“We came to them pretty early,” Jackley said. “We were with this in January, and this is evolving. So as these cases come up federally, and as attorney generals get a better grasp of this, I think the Legislature will be in a better position next session to evaluate, number one, is there a need for this, and two, who’s going to pay for it?”
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