Why nobody's stopping Grok

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Hello and welcome to Decoder. I'm Neil I Patel, editor in chief of The Verge, and Decoder is my show about big ideas. Today's episode is about X, Grok, and Elon Musk. Take a moment and pre-reply to all of the people who are going to send us emails. before actually listening to this episode. Thank you. We really do read all the emails. Please share this episode in outrage with five to seven of your friends if you can. It will really upset me personally, and you will have won.

Okay, moving on. By now, we're several weeks into one of the worst, most upsetting, and most stupidly irresponsible AI controversies in the short history of generative AI. The chatbot made by Elon Musk's XAI is able to make all manner of AI generated. images. including non-consensual intimate images of women and minors.

What's more, because Grok is connected to X, the platform formerly known as Twitter, users can simply ask Grok on X to edit any image on that platform, and Grok will mostly do it, and then distribute that image across the entire X platform.

Over the past few weeks, X and Elon have claimed repeatedly that various guardrails have been imposed on the image generator, but in testing by Verge reporters and by others, these guardrails have been mostly In fact, it's become abundantly clear that Elon Musk

and that he's become very annoyed with anyone who wants him to stop, particularly the various governments around the world that are threatening to take legal action against This is one of those situations where if you just describe the problem

someone, they will intuitively feel like someone should be able to do something about it. And it's true, someone should be able to do something about a one-click harassment machine that's generating intimate images of women and children without their consent. But who actually has that power and what they can do with it is a deeply complicated question, and it's all tied up in the thorny history of content moderation. and the legal precedents that underpin it in countries around the world.

So to help figure it all out, I invited Rihanna Pfeffercore on the show to talk it through with me. You've heard Rihanna on the show before. She's joined me to explain some complicated internet policy problems in the past. Right now, she's the Policy Fellow at the Stanford Institute for Human-Centered Artificial Intelligence, and she has a deep background in what regulators and lawmakers around the world can. do with a problem like Grok if they so choose. And that's really the key part.

Biggest problem in the entire Grok situation right now is that many of the people with the power to do something about Grok here in the United States are choosing to do nothing. That's almost everyone in Congress, the Department of Justice, the Federalist. Maybe most importantly, it's Apple and Google who control the mobile app stores that distribute Tim Cook and Sunar Patri could look at X, they could look at Grok and say, you know what, the rules of our app stores.

prohibit creating products that can generate non-consensual deep fake intimate images and pull the apps. But so far they haven't said anything. In fact, they haven't even replied to requests for comments on whether they think they should do something. It's just been radio silence.

So Rihanna helped me work through the legal frameworks at play here, the various actors involved that have leverage and could apply pressure to affect the situation, and where we might see this all go, as XAI does damage control, but largely continues to ship this product that continues to do real harm. Here's one thing I've been thinking about a lot is this entire situation as something.

Over the past 20 years or so, the idea of content moderation has gone in and out of favor as various kinds of social and community platforms wax and wane. The history of a platform like Reddit, for example, is just a microcosm of the entire history of content. And around 2021, we hit a real high watermark.

Of moderation and trust and safety on these platforms as a whole. That's when COVID misinformation, election lies, QAnon conspiracies, Incitement of mobs that would ride at the Capitol, uh You banned from If you were the President of the United States, it's safe to say that that era of content moderation is over, and we're now somewhere far more chaotic and laissez-faire. It's possible that Elon and his porny image generator will push that pendulum to swing back.

But even if it does, the outcome might still be more complicated than anyone wants. You'll see what I mean as we have this conversation, I think. Okay, Rihanna Feppercorn and the Grok saga. Here we go. Rihanna Pfeffricorn, you're the policy fellow at the Stanford Institute for Human Centered Artificial Intelligence. Welcome to Dakota.

Thanks for having me on. I would say I'm excited to talk to you. That's what I usually say. I'm excited to see you. I don't know if I'm excited to have the conversation we're about to have because it it is pretty nihilistic where we've gotten in terms of content moderation on the internet overall and then Particularly with what's happening with Grok on the X platform, where multiple layers of would-be gatekeepers seem to have just laid down on the

So that's really what I want to talk about. But you and I have known each other for a while. We've we've done episodes before. Give the listener a sense of your background and and why you've come to talk about platforms and AI in the way you've I have been in various tech policy related roles at Stanford for a decade at this point. And I started off focusing on encryption policy. And now way back in the, you know, mists of time during the Obama administration, it was usually

terrorism that got invoked is the reason why we shouldn't be allowed to have strong encryption for our devices and for our communications. But then that rationale shifted to child safety, which turned out to be really effective in terms of policy making and and regulatory effort. And that meant that in addition to working on encryption policy, I had to start getting up to speed on child safety issues as well.

Moving through different roles at Stanford brought me to working on a more trust and safety focused role, which is what I held the last time I talked to you, Melai, and now working full time on AI policy because Inevitably, all tech policy in recent years has uh converged upon all AI all the time. But as we're going to talk about, clearly still a lot of the

underlying trust and safety studies that I had been doing remain highly relevant now today. And so even in terms of like where my research has focused in the last couple of years. A lot of my research in the last couple of years has focused on child safety, especially in online safety issues and more broadly in the AI context.

Let's talk about Grok broadly. So Grok has the tools now where you can just edit any any image that anyone's uploading. The tools do not appear to have a great deal of trust and safety baked into them, such that you can make sexualized deepfakes of people.

Do these images violate any of our current federal laws? I'll give you the lawyer's answer, which is it depends. The difficulty is that some of these probably do cross a line. And others of them probably do not. So we have for three decades now had a federal law on the books criminalizing using a computer, whether that was Photoshop or now with AI.

to modify a real child's image into being a sexually explicit image, into child sex abuse material, or CSAM, as we'd call it for short, what used to be called child pornography. That law has Survived various uh legal challenges at the courts of appeals level. There's Supreme Court precedent saying that fully virtual CSAM is.

protective speech, unless it also is obscene, because there's no real child being harmed. The Supreme Court didn't deal with the part of the definition of child pornography, again to use the term on the books. that dealt with what are called morphed images, but several courts of appeals have

And they've said, Well, the harms that come from morphing a child's image into a sexually explicit image are more akin to the kinds of harms that ex are experienced in real hands on abuse. And so no, there's no first amendment protection. for a morphed image CSAM either. So some of the imagery that's coming out of Grok maybe qualifies as that. It's an open question whether bikini pictures themselves cross that line. And then more recently.

We have the Take It Down Act, which got passed last year by Congress and signed into law by President Trump that criminalizes nonconsensual intimate imagery, whether it's real or deep fake, whether it is of a minor or of an adult. So that is now a crime to publish or to threaten to publish.

There are takedown provisions, hence the acronym for the name, that don't go into effect until May. And this is certainly pointing up that uh, you know, a lot of people might be having to wait a long time before they can try and invoke that. To require X to remove material that it has not necessarily seen fit to remove so far, even though X nominally participates. In a voluntary initiative called Stop NCI for removing NCI.

But again, there too, not all of these images will necessarily qualify under the federal definition of what's called an intimate visual depiction, which itself, by and large, requires nudity. And to the extent that we're talking about bikini images or other images. Those again might not necessarily cross that line into illegality. Whether state laws

make the definition differently. I'm not sure. I'm not a big expert on NCII because the First Amendment questions that you adverted to are so much trickier than when we're talking about CSAM which has no protection whatsoever. Different places around the world though have laws that kick in differently and have decided in some instances actually yes, this is something that we can take action upon.

to block Grok entirely. We've seen the UK threatening to block access to X perhaps entirely. But under US federal law, it is going to be very fact intensive whether any of these images crosses the legal line. The fact that I've seen reporting that X has removed at least some images that Grok had generated suggests that Some of those maybe did cross the line in the opinion of whoever is left mining the store at XAI on content moderation and that those were taken seriously enough.

to remove potentially as child pornography. I'm just speculating here because I don't know. The people who would know, honestly, I think there should be congressional hearings to call up people from XAI, from the Department of Justice. For the Department of Defense, which has a huge contract to integrate Grok into now like sensitive Pentagon systems, which seems abominable. And I think that they should call.

The National Center for Missing and Exploited Children, which operates what's called the Cyber Tip Line, by which online platforms report CSAM on their services and say, How many reports have you gotten from XAI? Since Christmas-ish of 2025, when this new feature for Grott got rolled out, that might give us some better insight into.

At least what percentage of the torrent of imagery that has happened online does even XAI think crosses the line into where even they are not willing to remain let that remain up? There's many kinds of difference of degree that you mentioned here, right? There's

CSAM which gets no protection and even just photoshopping an image of a child into something illegal gets no protection and there's longstanding laws in the book. Then there's you have an adult and you can change their clothes or make them naked and somewhere along that spectrum you get First Amendment protection.

Then there's in my mind the most important aspect of all, which is scale and speed of creation and scale and speed of distribution. And it feels like a lot of this conversation doesn't reckon with You know, Photoshop has existed for a long time, and Photoshop fakes of people have existed for a long time. Every female celebrity in the world has some amount of Photoshop fakes of them floating around not wearing clothes.

But that still required like someone to do it. And then there was pretty narrow distribution for those things, right? Some pretty shady websites might distribute that stuff and you had to go find them. Grok is just different on every level. Right. It's like the old categories and the old gradations of this is First Amendment, this isn't kinda in my mind, go out the window when it's click any image, say undress her, and then instantly distribute it to millions of people.

And th it just seems like we need a different framework, a different legal rationale, maybe different penalties for enabling that versus the traditional fact-based Okay, this image is this person, is that First Amendment protected or not? Like it it just seems like all of that is doomed to spin in circles while the s speed and scale of the Grok machine is allowed to I think that is What makes this different? from previous rounds of the kinds of image based abuse that you mentioned.

where, you know, the the uh I published research last year looking into AI generated CSAM and what emerged was this picture that it really required Leveraging a bunch of different platforms at once. So you have these Midify apps that Some of them slip past App Store Review. Some of them slip past violating ad ad policies for display ads.

where, you know, the the app stores and major like, you know, CDNs for ad distribution nominally ban advertising or apps for notification purposes, but at scale, as you know. Some of those are going to get through. And so somebody might encounter an ad for a notification app, uh, let's say on Instagram. and be able to take somebody's picture off of their Instagram or off of some other platform and

Download this app through one of the app stores and undress that image and then circulate it in a group on Snapchat or a channel on Telegram. And so you have all of these different platforms that were being brought to bear to make that happen. And therefore you have all of these different uh potential prefer points maybe to try and cut those things.

off. Um, even if you could reduce, you know, the volume of noncompliant ads or if you could improve the level of app store review to keep those from happening in the first place. Uh if you could ban or filter out some amount of uh the sites that are accessible even without an app for doing notification, that might be some amount of defense in debt that you could do to try and take a bite out of this problem.

And then instead we now have a one-stop shop in the form of a major social media platform that integrates an image generator that to all appearances does not have safeguards in place. to prevent this kind of imagery from being generated. And like you said, is now fully integrated to do this at scale pretty much instantly. And that's where

I I I agree with you that it doesn't seem like our regulatory frameworks are really equipped for that. We have seen from the UK, for example, that they're saying we're doing an investigation under the Online Services Act because they have already put in place Obligations essentially to force certain online platforms like covered by their various categories

to step up and keep certain kinds of content from happening on their platforms in the first place. And so they have a different set of tools that they are looking into using. Again, going back to the question of like how much of this actually violates applicable laws. There's a whole round when they were negotiating the Online Safety Act in the UK about, you know, one version would have required platforms to moderate what is known as lawful but awful content, which to an American viewpoint

is a terrible idea. What do you mean, even if it's legal for me to say something or paint something or photograph something, that you're going to require online platforms to stop me from being able to s to say that online, distribute that that online? And, you know, we'll see whether this causes the UK to go back and say, let's revisit that whole lawful but awful thing when it comes to bikini pictures that maybe don't actually qualify as as CSAM, you know, under our our laws.

Because I agree with you of the robust free speech protections that we have in the United States and because of the various online legal structures that we've got. It may be that other countries will be able to respond more quickly under the Digital Services Act or under the Online Safety Act. I was talking to somebody earlier who said, it seems like there just isn't the muscle memory in the United States to know how to respond here.

Because we haven't really had uh both the kind of integration like you mentioned between the social media platform and a notification app like this into a rapid fire one-stop shop for this kind of of victimization of people. We've historically had, you might have a hidden site for serving up CSAM that does not care what the law is. They exist for one purpose. You have Nudify apps that are increasingly we're starting to see regulations for those apps in particular, but again, they're targeted at

something that is specifically intended only for non-censential deep fake pornography, not a general purpose image generator. And You also have regulators who are used to dealing with, by and large, big mainstream, often publicly traded companies that operate these social media services and that are pretty used to behaving in a pretty legal risk averse, optics sensitive, answerable to shareholders or to paying customers and the public.

kind of approach to what they allow on their services to the degree that even if they could theoretically allow everything that is legal under you know the law in any given jurisdiction, they don't do that because You rapidly turn into a cesspool if you do.

And so I I agree with you that it seems like we're in just kind of uncharted territory where that part this particular sort of perfect storm, not only of poorly secured image generator, social media platform that already had become known as the Nazi bar and somebody who is the richest man in the world owning both of those things and seeming to thumb his nose at at regulators and who we're going to find out like is he

so powerful and rich as to be untouchable, even in this instance, even when we're talking about child abuse imagery and non-consensual deepfake pornography, it feels like a combination that we just were not equipped to handle.

I want to come to all the potential checkpoints, particularly app stores. There's something there that I think is fascinating. There's a part of me though that It feels like the immediate rush to label everything Grok is doing on X as CSAM misses an important part of the puzzle, which is just the dynamic of a woman on X posting in a reply to harass her being someone posting her photo and instructing a robot to put that person in a bikini.

is a kind of violence. Like it is it is very much intended to harass, to denigrate, to harm. And we don't seem to have any language anywhere to just describe that thing as something as a tort, as something you can take action against.

Whether that's the government saying all of this should be illegal, we can describe it, and here's our rationale for the First Amendment challenge that is to come, whether it's the user themselves saying I was harmed by this interaction, like you should not be able to just Command a robot to put me in a bikini as a form of harassment. Like we don't it doesn't seem like that dynamic is captured anywhere.

Like we have to get all the way to CSAM before we can start talking about what to do. But the real harm is in what would normally be protected speech. But that has been made easier to execute, easier to distribute, easier to weaponize, easier to cause harm with and there's that uh not even a gray area. It's like a vacuum of of thinking of of descriptive words in the law. Is there anything that can solve that beyond will the UK and Europe have general acts governing platforms?

I think this goes back to the difficulty of are we trying to target the platform that is enabling the creation and distribution of this material as opposed to the end users who are engaging in this. Because, you know, I would disagree with you that we have no language and, you know, just nothing to say about This form of what is often called image-based sex abuse by people who work in and study this space. We have seen the advent year over year.

of what used to be called revenge porn laws and now more broadly non consensual intimate imagery or N CII laws that got passed state by state by state by state before we had the Take It Down Act last year. Now, like I said, I don't study N C I I for myself really, but it has been a many years long Campaign by people who are in that sphere, who are academics, scholars, lawyers, et cetera, to figure out how do you get

accountability for the people who are victimizing you in this way. And while we now have take it down as like a federal statute that defines a federal crime, we have long had other torts, things like intentional infliction of emotional distress, false light invasion of privacy, amongst the traditional privacy torts, the kinds of things that may seem

like less perhaps of a of a powerful tool compared to a federal criminal law that Congress saw fit to pay attention to and pass. So If you were to talk to people who, unlike me, have been up to their elbows in the NCII problem for a number of years. They could probably tell you, yeah, here's the approaches that we have taken over time. And they might also tell you, like, yes, people are being victimized in this way.

And even if you can see who's doing it, you can see that they have their uh their handle attached to their username and you have the image right there and you can document all of that and you know to get the timestamps and everything. How easy is it going to be to actually hold that particular end user accountable in court? And what remedy do you get out of that? And so I think that's probably why uh a lot of people are focusing more on like we have to go one or two levels up.

And instead of saying, okay, let's go onesie twosies after the people generating that image, what are we going to have in terms of potential liability or accountability for AI image generation services? Or for platforms that enable the distribution of it.

So much of tech policy is content moderation policy, it it's sort of every layer. Trust and safety, it's sort of every layer. And then the government's ability to make rules about trust and safety, content moderation, at least in the United States. They need a very strong rationale to overcome the First Amendment. And child safety seems to always be the go-to rationale.

Why should we make some law that would implicate the First Amendment? Why should that law be upheld as legal? And child safety seems to be where all that emphasis has been for quite a bit. There was this sense of deja vu when we were relitigating case law that I thought had been settled in the nineties in terms of all the age verification stuff.

only for that to just be sort of casually flipped aside by the Supreme Court without outright saying that they were doing so with the Paxdo case last year. with regard to age verification on the rationale that you have to keep children from being exposed to adult, like sexually explicit content. And so it can feel a bit like we're through the looking glass in terms of what might happen.

On a legal basis, because of, like you said, this seeming willingness to revisit what everybody thought were very clearly well established and settled precedents with regard to the bounds of how much the government can regulate speech. We have to take a short break here. Every day, millions of customers engage with AI agents like me. We resolve queries fast. We work 24 7 and we're helpful, knowledgeable, and empathetic. We're built to be the voice of the brands we serve.

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Welcome back. I'm talking with Brianna Pfeffercorn about She mentioned something called the Paxton. Before we really get into it, that's Free Speech Coalition versus Paxton, a case the Supreme Court decided last year, where Justice Clarence Thomas wrote in the majority opinion that it's constitutional for states to make websites and online services do user age verification. deeply on the verge. We'll link to our coverage in the show notes. Okay.

I'm glad you brought up the Paxton case, because it actually helps me think about what's going on with Groc in a very specific way. I I didn't think the Supreme Court issued a great decision in the Paxson case, but a lot of their rationale was hey, we left this alone for a long time, but now all the kids have these devices. And it's not out of bounds for us to say, you gotta try.

So the states are allowed to say you gotta try harder and all of these concerns about privacy, about data security, you guys are smart, you figure it out. Right, like uh that was the thrust of that case. Like it's different now. And so all these precedents from the nineties when everyone was on desktop computers.

Whatever. Like all the kids have phones now. You can get porn so easily. Asking to verify your age. Figure out the privacy problems. Like you're so concerned about pri figure it out. Like just solve it. But there's a compelling interest here to do age verification.

I'm not saying that I thought the specifics of that argument were great by the Supreme Court. I'm saying that that that's what that felt like to me. Like it's different now, the scale is different, the scope is different, the access is ubiquitous.

We need to make some rules. Like it's time for some rules. And I you know, I know a lot of parents who who generally agree with that. Parents who grew up with the internet and access and are like, I don't want my kids to have the experiences I had on AOL in the middle. There should be a law. I'm putting that right next to Grok where it's like, yeah, I can just put anyone I want in a bikini in a sexually suggested pose, and no one seems to be doing it. I can't square those two impulses.

Can you is uh it's just something really weird. I agree with you that I am not a fan of the Paxton decision and that underlying rationale of like, well set aside the security and privacy issues, you just gotta start like m making sure that you can collect everybody's like biometrics or their ID or whatever in the name of keeping children from accessing photography. It's like, okay, well

We've seen everybody's easily able to circumvent those, whether it's with a VPN or with using a realistic looking like game character to fool like an age verification tool. Uh and so you're not keeping people from accessing the content you're trying to keep them away from. And on the flip side, like the moment we started seeing these laws actually come into effect, there was like a massive data breach at Discord of like the third party vendor that they were using.

For doing age verification. So great, you don't get the upside that we were promised with these age verification laws, and you also get the downside that Everybody warned you it was going to happen. It happened immediately. We didn't even have to worry about being called slippery slope, uh, you know, hysterical zealots. It happened immediately. And everybody took the saddest, I told you so, victory laugh.

Because of course nobody wants to be in this situation where the laws are only impeding, you know, British people from accessing Wikipedia or whatever and not actually doing the thing that they were promised to do. And if anything, I think age verification Has gotten such a degree of cultural influence, of like now, this is the thing we're going to use to fix all of these problems, that I see it being deployed in the context of.

nonconsensual deep fake pornography. I was giving a lecture a few weeks ago about the research that I've done on this area. And one of the questions that came up during QA was, well if you want to deal with like nudify apps and making inappropriate imagery of children isn't age verification the answer and No, the problem isn't Whether it's a fourteen year old or a twenty four year old who's making non consensual deep fake imagery of somebody.

It's that any deep fake imagery without their consent is being made of somebody. That's the problem. And so it was this weird sort of window into When you have an age verification hammer, now everything starts to look like a nail and that's just not the that is not the case. Not having adequate like, you know, controls over who can view and make the nonconsensual like bikini imagery is not the place to be focusing on.

And so it remains to be seen whether this is the thing that breaks everybody out of that mode of thinking, that like if we just pass age verification in all fifty states you know, the the internet will somehow be a a better place to be. And instead we're just seeing like now not only Are we seeing the failure of age verification for the benefits without all the drawbacks that it was purported to have? But also we're seeing what used to be with regard to nudification apps.

kind of confined to this like CD underbelly of the internet as like escape containment and now is integrated, you know, vertical integration directly into a major online social media platform. Let me zoom out on age verification. I'm not really asking about The technique of age verification.

the policy trade off, the the posture we seemed to be in, where everyone knew the trade offs of age verification. They were not unclear to the industry. Everyone attempted to make it as clear as we could to policymakers and the Supreme Court. And the answer was Well, we have to do something. It's so bad we have to do something and we did something and then immediately, you know, all the negatives happen and maybe there's no upside. But the sense that this was such a huge problem.

That it something had to be done. And we should do this thing because it was a solution that was proposed. was pervasive. Like I heard it at every level. I heard it from our audience. I heard it from policymakers. We we heard it from the court. This is a problem. Kids are getting exposed to too much bad stuff. We have to do something and the first thing we can do is just figure out who's an adult.

Regardless of the trade-offs that are obvious to everyone. I'm looking at that. This is so bad we have to do something. And that's really the idea I'm centered on. And then I'm looking at grass. And it doesn't seem to be so bad that anyone has to do it. And I c I just can't square those two things existing in the same universe as part of the same storyline. And I think what I'm hearing from you is, well, age verification might be the thing that excuses.

Because now you're saying, Well, at least they're all adults or at least we did the thing and now this exists and it can be excused. That seems just as bad, but I I still can't quite put these two ideas. The internet is so bad for kids, we have to create the opportunity for huge breaches of privacy and data leaks. And we should just let Elon do whatever he wants to pictures of women and children.

My hope is that the Grok incident is revealing that age verification is not this one fit size fits all solution to like the ills

of the internet. And in terms of like what to do about it, like I have some fear that this will be interpreted by some regulators around the world as, see, this is why we need to expand bans on being on social media entirely to people below the age of sixteen, like they have done in Australia, which is being challenged legally by, you know, a group of teenagers themselves.

I'm afraid that we'll see the total ban approach of just like don't even let teenagers get on the internet at all, or at least on some defined subset, always a weirdly defined both under and over inclusive subset of of online services until they hit some magic number of an age, that this might

further that kind of request. Not only are they not happy with age verification in some regulatory like corners of the world, but also that they will want to push to exclude p young people from even larger swathes of of the internet, irrespective of the upside of what you might be able to find. on certain services. I'm not gonna sit here and say that there's a lot of good stuff to be found on X anymore any in in these days, but surely, you know, we have so many stories from kids of how

important it is for them, how marginalized or isolated that they may be, that they can find community in the spaces online that regulators are trying to ban them from. You know, we've seen some countries have at least temporarily decided to block Grok entirely under their own nation's laws. But I am afraid that this is going to feed into even more thirst for similar under 16 social media type bands like the one that we have seen in Australia.

You will not find a lot of big fans of Section 230 among the people fighting against NCII. I personally am a big fan. of section two thirty, but I understand why the anti-NCII folks who have been trying to fight this thing that really harms real people in their lives and can follow them around for years, why they are not big fans.

The section two hundred and thirty piece of this is fascinating on a number of dimensions. Uh section two thirty is I'm sure the decoder audience knows, is the law that says uh platforms of the internet are not legally responsible for what their users post except in a handful of circumstances. And it has uh basically allowed the platforms to exist at this scale they exist.

Is that it is generating the images. It is doing so in response to user queries, but XAI, which owns Grok and which owns Axis. is the party that is generating and publishing the images. Does that change the two thirty dynamic here? Are they responsible for the thing that they are publishing? So a few things. One is um section two hundred and thirty has never barred federal criminal enforcement of the law and both with respect to whatever content counts as CSAM under federal criminal laws.

And whatever violates the new law, take it down now, defines a federal crime of publishing non-consensual deep fake pornography of adults and minors alike. So for those Particular whatever images qualify as one of those two categories. Nothing stops the DOJ from taking action against XAI or X in that regard for something that violates federal criminal law.

That's just the DOJ. It doesn't get at civil liability or like state uh state AGs like the one that California has now opened an investigation. What you're mentioning is something that actually there's also this other portion of section two thirty that says like it has to be information provided by somebody else, right? Some other third party. Usually that's a user.

And it doesn't bar liability, including civil liability, where it is the platform itself that's contributing to what it is that makes the content illegal or where the platform is generating the content itself. We have seen statements from Ron Wyden, the senator who has been around in Congress long enough that he helped write Section two thirty, saying that AI output is not meant to be covered by that.

not supposed to be immune by section 230. My understanding is that it's not yet a settled question in the courts. And my prediction is that this is the situation that's going to give rise to some amount of litigation where that question will be squarely presented. Is the output of an AI, a generative AI tool covered by Section 230 immunity or not? I think we're going to find that out in court opinions. probably sometime uh this year. And in fact we're recording this on January fifteenth.

I am surprised that I haven't seen a class action complaint filed against X and XAI in federal court yet. I would have thought that some enterprising plaintiff's law firm would have filed that immediately already with uh ripped from the headlines.

Quotations. Hasn't happened yet. Maybe it's because things are moving as fast as they are and people are trying to just make their best case. But we've seen You know, even what's called the cottage industry of law firms That have focused in recent years on bringing litigation against platforms over things like social media addiction allegations for teenagers.

And over uh we've seen some lawsuits about the outputs of chatbots allegedly culminating in suicide, unfortunately. In one of those chatbot cases, you know, the defendants didn't raise a section 230 defense. It's always incumbent upon the defendant to raise that. I think they raised something with regard to the First Amendment. That case just settled pretty recently. So we don't really have an answer yet, um, in that regard.

What does section 230 do with regard to civil liability for the output of of generative AI tools? But based on both the general weakening of Section 230 over the last decade or so, where courts have seemed to be much more willing to bend over backwards to find a way to say no, it doesn't apply, and the success that plaintiffs have had here and there in terms of pleading around section two thirty to say this isn't about user content, this is about defective design.

features and having some success not 100% of the time but some success there in not getting Section 230 to apply. Combined with, you know, I think there's been Ninth Circuit oral arguments, trial and so on in some of these social media addiction cases, we are in a place where 10 years ago, Section 230 might have been expected to form a much more robust defense.

as opposed to here, where we are now in a place where both the kinds of arguments that plaintiff have realized that they can make and sometimes make successfully and the willingness of courts to uh not be as as uh eager to apply section two thirty might mean that there may be more likelihood for plaintiffs to have some success if they want to take on this Grok scandal in court. Again though

We also should be continuing to pay attention to like where is the DOJ on this? We should not be letting them off the hook either. It can feel, I think. kind of hopeless to say, wow, the world's richest man is in cahoots with, you know, the federal government. who allegedly they care about child safety and like protecting women online as evidence from signing the Take It Down Act, but where is the Department of Justice?

Are they investigating XAI? And X, if not, why not? We also are in a weird situation where going back to take it down. Eventually, platforms including X are gonna have to remove this imagery when victims file a complaint and want it to report. It has to come down within forty eight hours.

The enforcement of that is going to be the Federal Trade Commission. There's two guys left on the Federal Trade Commission because Trump fired the Democratic ones, and the ones that are left are like far-right anti-porn zealots. You know, like literally one of them was

Uh fellow with the Heritage Foundation whose project 2025 says pornography should all be illegal. It should be wiped off of the internet. The people who produce it should be put in jail, and platforms that distribute it should be mixed out of out of corporate existence. And oh by the way, pornography includes trans and queer people existing at all.

So what happens once those takedown provisions go into effect and it is for the FTC to oversee whether platforms, including X, including Groc, are taking this material down when victims depicted in it ask for it to be taken down? Are we going to see Elon Musk at the zenith of his power be able to influence what either DOJ does or what the FTC does?

Or are we going to see the weird far right zealots who are now the only people left minding the store at the Federal Trade Commission saying, actually this helps us with our overall anti-legal porn agenda? One of the interesting things about sort of MAGA Republicans dealing with this, you know, there there are many women in the MAGA Republican ranks, and I've seen some of them come out and say This isn't the time for law enforcement. We trust X to do the the right thing with new technology.

And I I have no idea where that's coming from, where that belief that they have a shared understanding of what the right thing is and that Elon wants to actually execute the right thing. Because everything I see from Elon He's made a number of public statements now. Seem to suggest he's very irritated he's not allowed to run this image generator any way he wants.

And that any government saying what he should do with it is censorship that he should fight, even as he sort of reluctantly says he's complying or ex says it's complying. The dynamic right now is There's pressure from the UK. X announces that the system won't work in the UK. A Verge reporter in the UK tests the system and it still works just fine with the most trivial of workarounds, right? You can see the company does not actually want to give up this function.

It wants the appearance of giving it up to make the pressure go away. And I just wonder, you know, inside the politics of this all, at least in this country, there is still the sense that you shouldn't do this. And the the method by which you arrive at not doing it is well, you have to either believe that Elon doesn't want to do it and he's trying to fix it, or you have to actually pressure the company into not doing it using the tools of the state. And I'm not sure that

MAGA is gonna get to tools of the state. I had not yet thought about the particular Project 2025 chapter that Andrew Ferguson, the head of the FTC, has written. But it is true that there is that element of the Trump administration that is in its way ascendant. Have they said anything yet about any of this? Do they besides take it down? Does the FCC have any say here whatsoever?

I haven't seen any statement by the FTC. The only statement that I've seen coming out of DOJ was to reiterate that AI CSAM is illegal and that they will go after people who produce and possess it, but that's still focused on the end users. So the Department of Justice, for its part, has said that they will go after people who produce and possess AI-generated CSAM, but that's still only focusing on the end user, not on X.

or XAI. Now Historically, it has been uncommon for the DOJ or the FBI to comment on on whether an ongoing investigation is open into anybody in particular. That's a norm we've seen Fall by the Wayside whenever Pam Bondi thinks that it is convenient for her to somehow totally like manage to undercut her own investigations, but I digress. So, you know, I think it's worth asking, like, what are they doing about it? Are they going to investigate?

We never know. Lindsay Halligan has shown us that uh people are willing to run their mouths off when they think uh that they're not being recorded. We don't necessarily know if the DOJ is is investigating. We don't know how the FTC will plan to enforce. And I think that those sorts of dynamics of like nobody is coming to save us. mean that there might be a greater like appetite amongst

Average people to say, like, okay, well, what can we be doing about this? Should our lawmakers be changing the laws? We saw a very quick passage in the Senate. For a bill that would open up private right of action for suing those who disensual deep fake imagery of you as something that was. Uh pretty.

noticeable hole in take it down that only gives enforcement to the FTC. And if people are looking around saying, well, this thoroughly corrupted DOJ is the only people who can go after platforms for federal criminal violations. And if the FTC is the only one who will be able to enforce uh violations of takedown requirements under take it down, shouldn't there be some other changes to allow greater accountability.

Maybe that's something that will drive change, even potentially here, you know, in in this Congress, we'll see. Because again, ostensibly, victimizing women and children is something that both sides of the aisle allegedly care about. Allegedly.

A headline just came across the transom. The Wall Street Journal just published influencer who had child with Elon Musk sues X AI over deep images. Ashley Sinclair, who had one of Elon's many, many children, seeks a restraining order to stop the Grok chatbot from undressing Earth AI.

This idea that there's a private right of action against the platform i new ish. These are the sorts of lawsuits that have typically hit the two hundred thirty wall. The Defiance Act has not passed yet. Do you think she's got a chance? I'd have to see what her lawsuit says. Her allegation is that Grok is unreasonably dangerous as designed. So there you go. You're going to get the uh design defect.

type of of allegation. And that is not surprising to me at all. As I was mentioning, we've seen in social media addiction type cases that plaintiff's attorneys have argued It is not about the content of, you know, users' posts or whatever and therefore section two thirty should not apply. We're talking about defective design and sometimes those claims do get around section two thirty. We'll see. Now we will see if XAI And X want to actually

finally bring up um section two hundred thirty in response or whether they will only invoke the First Amendment or will they choose to just sell this quietly and and make it go away? It remains to be seen. But like I was saying earlier It is a little bit of uh there's a little bit of guesswork involved in depending on what court you get, what judge you get, what arguments get made, what will come of these types of claims.

But we have seen in the social media addiction context that some of those have gone pretty far so far and haven't been thrown out immediately on section 230 grounds early on. And so we can expect, you know, if if Elon chooses to fight this, which he's nothing if not litigious, that we may expect a concerted legal battle coming out of this. We have to pause here for another quick break. We'll be right back.

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Welcome back. I'm talking with Stanford's Rihanna Pfeffercorn. Right before the break, we're talking about the mess of laws, regulations, and courts that might enable someone to do something about Grok. That someone, by the way, includes Ashley Saint Clair, the mother of one of Elon Musk's children, who is now suing over the fact that Groc has undressed.

But in the worlds of apps and websites, regulators and lawsuits are just one piece of the puzzle. So I wanted to know who else could act here? And why aren't they? We've talked a lot about the sort of legal frameworks here, what courts and governments might do, what individual actors might do using those laws.

Earlier I mentioned that there's kind of a universe of actors here, right? There are payment processors and app stores and all kinds of other pressure points that might serve as gatekeepers or guardians of norms.

I'm not sure that there are norms anymore in twenty twenty six, but that that's kind of the idea, right? You don't always have to go to the government to solve these problems. You've built these systems and the systems should have some points of pressure to make sure things are operating well or safely for people. The ones that come to mind for me the most here are the app stores.

Apple and Google have become empires. They're become some of the richest companies in the world on the back of having total control of the applications on their platforms, charging absurd rents to those app developers for the transactions that take place. They have endured antitrust lawsuit after antitrust lawsuit, and their argument is always we need this control.

In order to keep our users safe. It is the bedrock principle of their defense, particularly for Apple. And in this case, they have done nothing. They like literally nothing. They won't even comment when we write stories about it. As far as I can tell, they've commented to no one. Why do you think that is? Why do you think there's such silence from the two biggest and baddest gatekeepers of the world?

There's other reporting in the verge just calling Tim Cook and Sunder Pachai cowards. Um like there's a letter from multiple US senators, Senator Wyden, Senator Markey, Senator Lujan, basically saying X and X AI like these apps are violating your own terms of service. Against like, you know, non-consensual like sexual imagery of people. Why aren't you taking these down? You know, the way you did with Ice Block and Red Dot, the you know, perfectly legal apps for doing the perfectly legal act.

of observing ice when they're kidnapping our neighbors off of the streets. Um and it's hard to discern any certainly any like moral or ethical principle in refusing to take action here. Again, you know We're not operating on a blank slate. If you remember a year ago, at this exact time a year ago, everybody was freaking out over the impending banning of TikTok.

From App Store, something that a group of senators had all decided that needed to be done, that the Supreme Court had upheld as like the power to do. Uh and everybody freaked out and then it just kind of went away. TikTok came back to be available. Again, despite the fact that you would think any of these app stores would think there's potentially ruinous liability under the law that Congress passed and and that got signed into law and the Supreme Court upheld, if we allow it.

to still be in the app store going forward. And then it just kind of went away. And I think you're pointing to how We are in a different realm now from where it used to be that any kind of job owning by government actors was supposed to be completely unacceptable. We even had a Supreme Court case against that. Now we have a letter from three senators saying you should remove these apps from the app store because of violations of your terms of service. That's job owning.

But I don't think a lot of people are necessarily pissed off about that and at the same time We're now in a place where actually it turns out you can just jaw bone companies, uh, if you are Pam Bondi, et cetera, uh, and threaten them. And uh the people who used to be mad about jaw boning uh are nowhere to be found on that. And so it seems like we are past just sort of normal expectations around, you know, the rule of law or around principled enforcement.

Uh of your own policies, uh, when it comes to apps that are doing harm to people every single day. And it might just be that we're going to find out whether Elon Musk companies are just too big to fail. When I've talked to people about like, well, but isn't aren't the app stores at least removing Neudify apps?

other people I talked to who research this will say, you know what, I can still do a search for Nunify apps on the app stores and I'll still get a lot of results. So there isn't even necessarily consistent enforcement against

Things that exist only for non-consensual deep fake pornography that are not in any way a general purpose tool for image generation or a major social media platform. And if they can't even or won't even take action against all of those apps, And meanwhile, you have a highly litigious head of apps that are in major mainstream use. It's hard to see like How it can be justified if you are Tim or Sundar, but it's uh unfortunately kind of easy to understand why cowardice is the easy way out.

We didn't write that headline and I stand by it. Uh the the thing that grabs me, I do. I mean this to me feels like if you have spent the better part of a decade insisting that you are the only party that can keep users on your phone safe. And then you lie down now, you're doing it for some other reason. And if you can't even articulate that reason, I do think that's cowardice.

The thing that gets me though, that kind of boggles my mind, this undoes their big antitrust defense. Like Apple has an antitrust case coming up. The Department of Justice has, under the Biden administration, filed that case. The Trump administration is pursuing it still. We'll see how it goes. But here in this moment is the single greatest piece of evidence that Apple doesn't actually care about those rules.

Right. And I I just wonder, are they cutting off their nose to spite their face? Like At some point you're gonna end up in court and it's gonna come up that they have selective enforcement of their rules. And that selective enforcement undoes the primary reason that they claim they need to maintain their monopolistic control of the the application environment. And I just I can't square that.

It feels like pissing off Elon in the short term is fine if you can protect your App Store monopoly in the long.

Right. And you know, it it it doesn't just suggest that like maybe the government is in the right here that like, well, you're just misusing your own monopoly power to pick and choose which apps you think deserve to be online. If it's monitoring ICE. then it doesn't deserve it, but if it's, you know, the non consensual deep fake porn machine, uh you're willing to leave that like up because of other considerations, uh, then you're I I agree with you that it seems like it does

uh draw into question uh the sincerity of those claims. I mean I'm I'm I'm I'm Sympathetic to the privacy and security, especially the security review type arguments. or why we need a walled garden that charges 30% for the privilege of being in the walled garden. But it becomes a lot harder to defend, uh as you said, when they are picking and choosing their own enforcement.

I also think that thirty percent and this is also something that they got sued over, is worth examining right now because for as long as payment processors in the app stores take a cut of the paid service for making the non-consensual deepfake nude machine go burr. It seems like the payment processors and the app stores are also should be asked why are they taking a cut of the the victimization of women and children.

That is the next turn of the story. And it's actually the next thing I wanted to ask you. There are the payment processors, right? The the visas, the master cards. We see them in response to things like Tumblr. like revoke their services. There's a lot of of very legal uh erotica on the internet that has been taken down or demonetized because of payment processors. We see this all the time. And they also seem to be doing nothing in this case.

Is this colorable? Can can you say because you provide payment services to X, which provides a huge range of services, you can narrowly look at this one problem and say we should pull our services?

'Cause that uh maybe that's too far. Maybe maybe there's too much abstraction for the payment processor. Aaron Powell It's hard and I don't want to really make a uh forecast about what should happen there because Anything that you go different layers at the stack, I think, has very different arguments compared to like when we're just talking about like the app itself.

There have been various arguments in the past about whether Section two thirty comes into play again if you go like one level down. We are starting to see now efforts to try and target. layers down the stack with anybody who's providing services to uh non-consensual like deep fake pornography services.

California passed a law that didn't get a lot no a lot of notice last year that not only outlawed non consensual deep fake pornography services, it also allows for liability for service providers to those services. Once they are put on notice that they have a deep fig porn service as a customer, if they don't then drop

that customer, they can be held liable. And that's the kind of further down the stack liability that I think we will see more of. I've seen the UK government talking about this. Uh Minnesota made a kind of hand fisted attempt at writing a bill to do the same thing that would have Uh inadvertently outlawed all uh AI generated porn, not just non consensual ones. But

opening up the realm of further down the stack liability to try and go from like, well, okay, well, if the user material doesn't get taken down, let's go after the platform. If the platform isn't responsive, let's go after the AWSs and cloud flares and stripes of the world.

I think we might see potentially more of that also in response both to the general problem of like Nudify apps that are still out there and bringing in millions of dollars a year, and in response to Grok acting more like one of those deepfake Nudify apps. as opposed to like a big major good faith uh online survey.

Good faith is is sort of an interesting place to wrap up. It's been on my mind. I don't think X or Grok are acting in good faith. But a lot of these systems presume good faith actors. They presume the good intent of the platforms, of most of the people on the platforms. And I look around and I say, well, the era of content moderation policy that was based on good faith, that was based on the idea that

I don't know, Twitter was gonna cause d democratic revolutions across the world or whatever we thought it was gonna do. That's all gone. In fact, the era of content moderation itself might be gone. I look at Instagram. Instagram is overrun with sexualized deepfakes of celebrities all day long.

You want to watch Trump dance without a shirt on? You can do that on Instagram all day long. It's not great, but you can do it all day long on Instagram. Maybe you can't prompt it into generating it for you on demand, but Meta's designs and AI certainly suggests that you will get to that.

Meta has uh is uh moderating racism, overt racism in its comments less and less. I see it every day. I see the same thing on YouTube. YouTube has long evaded all scrutiny. There's more and more Pretty gross content all over YouTube and YouTube Shorts all day long. from the heights of 2020 content moderation where they thought they had a big responsibility and now they have ceded all that responsibility. And now X and Grok might be all the way at the end of that road.

Where not only they're ceding responsibility, they're actively thwarting that responsibility or or anyone that might impose that responsibility. Is this just the pendulum swinging back and forth, or is this an actual reset moment where we should think about the platforms and their ability to act in good faith with good intent?

I mean it has laid bare how like craven the motives are for major platforms that even before the inauguration, right after the election, already we were seeing announcements from online platforms that they were pulling back from content moderation. Either they were going to say we're going to put that on to end users to do community notes instead of having fact checkers ourselves, or we're going to have AI tools do the moderation for us.

Or just straight up backtracking on things like, Oh yeah, let's just say dead naming is okay again. We're not gonna bother ourselves too much with that. I I think you're right that like, you know, there will be an actual ebb and flow to how much effort companies put into content moderation depending on political factors, social factors, business factors. But I think it is now much more clear that people cannot rely upon these companies to view their trust and safety teams as something that is

uh overall benefit and boon for the company rather than a cost center to try and be minimized wherever possible. And I think this also feeds into why we have seen such more such a great increase in interest in, you know, defederalized like social network. in the rise of middleware and giving more tooling that is built by, for, and about the communities that are most adversely affected by noxious content online.

to try and put tools back into the hands of users to to to tailor their experience. Which, you know, ironically, going back to the roots of Section 230 to begin with, was one of the things that was envisioned to happen uh coming out of 230. Not just that you would have immunity for taking stuff down or leaving stuff up, but that we would see a greater ecosystem of content moderation tools that would be encouraged.

to flourish to restore that level of of control and uh customization and curation in the user's hands.

Instead, we I think a lot of us got used to just relying that it would probably be in the hands of these large centralized platforms to do that for us. And now as we're seeing We have an increasing need for alternative ways of doing that, whether that is getting off of out of the Nazi bar, or whether that is at least building up uh greater tools made by the people who understand the use case and the need for it.

It's always dangerous to ask this question when something is moving as fast as the situation seems to be moving, and especially when I know we're gonna publish this episode several days after you and I are having this conversation. But I gotta ask, what do you think happens next in a grok situation? What do you think the next big turns are? What should people be looking for?

So we already have seen it took them three weeks to finally announce that they were going to disallow the up generation of bikini pictures. Turned out that didn't work, but it took them three weeks to get there. It's it's difficult to predict exactly what will happen, but I will kind of be unsurprised if the outcome of this really does end up being outright saying.

It is censorship to tell us we can't generate imagery of fourteen year old girls. Like that has felt like it was always where the content moderation is censorship discussion was going to go. And this would be the logical culmination of that, I think. kind of as as you were hinting at, Mulai, that we might just see further public statements about changes being made, which do not actually work in actuality

Whether because their heart isn't in it or because, as I've discussed elsewhere, safeguarding AI models really is hard. One thing that I don't think is going to happen, unfortunately, is seeing them pull Grok's image generation or image editing features offline because frankly there's just too much money in it. That is an odd motivation for the richest man in the world, and yet it seems to be a motivation.

Rihanna, this was a illuminating conversation. I hesitate to say it was great because I I find myself deeply disturbed by all of it. But thank you so much for coming on and explaining all this to us. It seems like you and I are gonna have many more conversations in the year to come. God, I hope not. Not because of you. Just because of the dumpster fire. Yeah. That's true. Yeah. I hope we have different conversations.

I'd like to thank Rihanna for taking the time to speak with me and thank you for listening. I hope you enjoyed it. If you'd like to let us know what you thought about this episode or really anything else you want us to cover, drop us a line. You can email us at decoder at the verge.com. Like I said, we really do read all the emails. You can also hit me up directly on Threads or Blue Sky.

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