What legal tests determine whether a non-photographic image (CGI or drawing) is treated as CSAM under federal law?

1. Statutory baseline — “visual depiction” and “sexually explicit conduct” are the core legal elements

Federal child pornography statutes criminalize production, distribution, receipt, and possession of “any visual depiction” of sexually explicit conduct involving a minor, and they define the statutory predicates — what counts as a “visual depiction” and what constitutes “sexually explicit conduct” — in Chapter 110 of Title 18, which prosecutors rely on to bring CSAM charges ^{[1] [4]}.

2. The “indistinguishable” test for virtual or computer-generated images

Because the Supreme Court struck down overly broad language that criminalized images that merely “appear to be” minors, Congress and courts now focus on whether a virtual image is “indistinguishable” from real child pornography; federal guidance and practitioners treat computer-generated images that are effectively indistinguishable from actual CSAM as falling squarely within the statute’s reach ^{[2] [5]}.

3. Lasciviousness and contextual evaluation — how non-photographic images get parsed

Even for non-photographic images, prosecutors and courts examine whether the depiction exhibits a minor in a lascivious manner or otherwise depicts sexually explicit conduct as defined in statute, applying multi-factor tests (historically drawn from precedents) that consider posture, nudity, the focus on sexual parts, and the intent to sexualize the minor — factors that convert an image from protected fantasy art into criminal CSAM when a child is involved ^{[1] [5]}.

4. Evidence of “real child” vs. clear virtuality — burden and prosecutorial practice

Where an image plainly depicts a real child, statutory elements are often straightforward; where an image is synthetic, federal practice looks to realistic quality and whether the image is “virtually indistinguishable” from a real child depiction — the government has prosecuted cases involving altered or AI-generated images, and the FBI explicitly warns that realistic computer-generated CSAM is illegal across production, distribution, and possession charges ^{[6] [5]}.

5. Reporting, platform obligations, and the ripple effects of statutory language

Interactive computer service providers must report apparent CSAM to NCMEC under 18 U.S.C. §2258A, and recent laws (like the REPORT Act) and NCMEC reporting practices have been updated to contend with AI-generated material, pushing platforms to treat realistic CGI depictions of minors as reportable and removable even as debates about over-reporting and transparency persist ^{[3] [7] [8]}.

6. Constitutional and policy pushback — vagueness, free expression, and enforcement risk

Civil liberties advocates warn that vague statutory extensions or overbroad reporting requirements risk suppressing lawful speech and privacy; critiques emphasize that poorly defined standards for non-photographic content could chill artistic expression and lead platforms to over-remove content rather than conduct fine-grained legal analyses — a tension explicitly raised by groups like the Center for Democracy & Technology ^[9].

7. Practical takeaways and limits of current reporting

In practice, the legal test for treating a non-photographic image as CSAM is a hybrid: the image must be a “visual depiction” of sexually explicit conduct involving a minor under the statute, and for synthetic content the image must be effectively indistinguishable from actual CSAM; enforcement and reporting regimes implement those tests, but evolving AI capabilities, statutory updates, and constitutional challenges mean gaps and disputes persist — reporting here is based on federal statutes, DOJ and FBI guidance, NCMEC reporting rules, and legal commentary, and does not purport to catalog every relevant case law nuance beyond those sources ^{[1] [2] [6] [3]}.