(1)A person commits a felony if he knowingly produces, distributes, receives, possesses, or accesses a visual depiction, including a video or image created using generative AI or machine learning, that:
(a)Depicts a child engaging in explicit sexual conduct; and
(2)A person who violates subsection (1) of this section is guilty of a felony and shall be punishable by imprisonment in the state prison for a period not to exceed five (5) years or by a fine not to exceed five thousand dollars ($5,000), or by both such imprisonment and fine.
(3)It shall not be a required element of a violation of subsection (1) of this section that the child depicted actually exists.
(4)It shall be an affirmative defense to a charge of receiving or possessing a visual depiction in violation o
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(1) A person commits a felony if he knowingly produces, distributes, receives, possesses, or accesses a visual depiction, including a video or image created using generative AI or machine learning, that:
(a) Depicts a child engaging in explicit sexual conduct; and
(b) Is obscene.
(2) A person who violates subsection (1) of this section is guilty of a felony and shall be punishable by imprisonment in the state prison for a period not to exceed five (5) years or by a fine not to exceed five thousand dollars ($5,000), or by both such imprisonment and fine.
(3) It shall not be a required element of a violation of subsection (1) of this section that the child depicted actually exists.
(4) It shall be an affirmative defense to a charge of receiving or possessing a visual depiction in violation of subsection (1) of this section that the defendant:
(a) Possessed or received five (5) or fewer such visual depictions; and
(b) Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction:
(i) Took reasonable steps to destroy each such visual depiction; or
(ii) Reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
(5) The provisions of this section shall not be construed to impose criminal or civil liability on law enforcement officers acting in good faith and in the course and scope of their official duties.
(6) As used in this section:
(a) "Child" means a person who is less than eighteen (18) years of age.
(b) "Explicit sexual conduct" is as defined in section 18-1507, Idaho Code.
(c) "Generative AI" means any algorithm or model that creates content such as text, images, audio, or video.
(d) "Law enforcement officer" means any court personnel, sheriff, constable, peace officer, state police officer, correctional officer, probation officer, parole officer, prosecuting attorney, or attorney general, or their employees.
(e) "Machine learning" means the use of algorithms to enable a computer to learn to perform tasks by analyzing a large dataset without being explicitly programmed.
(f) The requirement that the visual depiction must be "obscene" as provided in subsection (1)(b) of this section shall require the state to prove that subparagraphs (i), (ii), and (iii) of this paragraph apply to the visual depiction and that the defendant knew the general content, character, and nature of the visual depiction. It is not necessary for the state to prove that the defendant knew or believed the visual depiction to be legally obscene. A visual depiction is "obscene" when:
(i) The average person, applying contemporary community standards, would find that the visual depiction, taken as a whole, is in some way erotic and appeals to a degrading, unhealthy, or morbid interest in sex as distinguished from normal, healthy sexual desires;
(ii) The average person, applying contemporary community standards, would find that the visual depiction depicts ultimate sexual acts, excretory functions, masturbation, or lewd exhibition of the genitals in a patently offensive way; and
(iii) A reasonable person would find that the material, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(g) "Visual depiction" includes undeveloped film and videotape, and data stored on a computer disk or by electronic means that is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, computer image or picture, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means or created by generative AI or machine learning.