How have federal appeals courts ruled on whether streamed CSAM without saved files counts as possession?
Executive summary
Federal appeals courts have not produced a uniform, definitive rule that streaming child sexual abuse material (CSAM) without saving a file always constitutes “possession”; lower courts and commentators have split on whether transient access shows the requisite control or dominion, and a recent district-court ruling dismissed a possession count involving AI-generated material that is now on appeal to the Seventh Circuit [1] [2]. Existing appellate decisions and statutory text focus on control, storage, and the nature of the depiction, but the specific question of purely streamed, unsaved CSAM remains underdeveloped in the circuits based on the available reporting [1] [2].
1. How federal law defines possession and why that matters
Federal CSAM statutes criminalize the knowing possession, receipt, distribution, or production of visual depictions of minors engaged in sexually explicit conduct and have long required proof that a defendant had control or dominion over the material—often demonstrated by storage on a device or files under the defendant’s control—which courts treat as central to possession charges [1] [3]. That baseline makes the “streaming” question legally fraught because streamed data may never reside as a persistent file, prompting debate about whether ephemeral access equals the possession element that statutes and precedents demand [1].
2. Recent district and appellate skirmishes over AI‑generated images
A recent district-court opinion dismissed a possession count under 18 U.S.C. § 1466A as-applied to privately held, AI‑generated obscene material, a ruling that interprets possession doctrines through First Amendment and statutory lenses and is now the subject of a government appeal to the Seventh Circuit (case number 25‑1354) [2] [1]. TechPolicy.Press reports that the district court saw Stanley-style limits on possession prosecutions and held that Section 1466A could not constitutionally be applied to private possession of “virtual” CSAM, and that the government is pursuing appellate review [2].
3. What appeals courts have said so far — fractured signals, not settled law
Appellate courts have issued decisions touching adjacent questions—such as whether certain online intermediaries act as state actors for Fourth Amendment purposes or whether realistic or morphed images depicting real children fall outside First Amendment protection—but there is no clear, settled appeals-court rule specifically holding that streamed-but-unsaved CSAM counts as possession [4] [5]. Commentators and defense practitioners stress the traditional focus on “control” and storage as key elements of possession, which disadvantages straightforward application of possession charges to pure streaming absent evidence of saving or intent to save [1] [5].
4. Prosecutors’ alternative strategies and statutory workarounds
Because possession can be hard to prove for ephemeral access, prosecutors and policy advocates push other tools: statutes that punish production, distribution, receipt, access-with-intent-to-view, or child-obscenity provisions that do not require the depicted minor to be real; and legislative proposals (e.g., ENFORCE-style reforms) aim to close gaps by clarifying liability for AI-generated CSAM or adding offenses tied to access and distribution [6] [2]. TechPolicy.Press and advocacy groups note prosecutors may invoke child‑obscenity provisions that expressly permit prosecution of virtual depictions and thus avoid some First Amendment and possession proof difficulties [2] [6].
5. The evidentiary and technological hurdles courts must confront
Courts deciding streaming-possession disputes will confront technical evidence about caching, buffering, intent to save, and whether transient data were automatically stored—matters that map onto legal doctrines about control and dominion and that have produced mixed fact-driven outcomes at the trial level rather than clear appellate rules [1] [4]. Reporting and scholarship to date show these are evolving questions influenced by rapid AI and network changes, and the current appeals docket—particularly the Seventh Circuit appeal—may be the first to forge a binding circuit standard addressing streamed CSAM and possession [2].
6. Bottom line and limits of reporting
At present, federal appeals courts have sent mixed signals and have not uniformly held that streamed CSAM without saved files equals possession; lower courts have dismissed possession counts in high‑profile AI cases and prosecutors are adapting by pursuing other statutes, and the Seventh Circuit appeal referenced in TechPolicy.Press may provide clearer appellate guidance [2] [1] [6]. The available sources do not contain a comprehensive survey of every circuit on the streaming‑possession question, so definitive statements about a nationwide appellate consensus cannot be supported from the materials provided [2] [1].