By guest blogger Prof. <\/span>Jess Miers<\/span><\/a> (with additional comments from Eric)<\/p>\n Generated by ChatGPT<\/p>\n<\/div>\n Two things can be true: Non-consensual intimate imagery (NCII) is a serious and gendered harm. And, the \u2018Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act,\u2019\u2019 a\/k\/a the <\/span>TAKE IT DOWN Act<\/span><\/a>, is a weapon of mass censorship.<\/span><\/p>\n Background<\/b><\/p>\n In October 2023, <\/span>two high school students<\/span><\/a> became the victims of AI-generated NCII. Classmates had used <\/span>\u201cnudify\u201d tools<\/span><\/a> to create fake explicit images using public photos pulled from their social media profiles. The incident sparked outrage, culminating in a <\/span>hearing<\/span><\/a> last June where the students\u2019 families called for federal action.<\/span><\/p>\n Congress responded with the TAKE IT DOWN Act, introduced by Senator Ted Cruz and quickly co-sponsored by a bipartisan group of lawmakers. On its face, the law targets non-consensual intimate imagery, including synthetic content. In practice, it creates a sweeping speech-removal regime with few safeguards.<\/span><\/p>\n Keep in mind, the law was passed under an administration that has shown little regard for civil liberties or dissenting speech. It gives the government broad power to remove online content of which it disapproves and opens the door to selective enforcement. Trump made his intentions clear during <\/span>his March State of the Union<\/span><\/a>:<\/span><\/p>\n And I\u2019m going to use that bill for myself too, if you don\u2019t mind\u2014because nobody gets treated worse than I do online.<\/span><\/p>\n<\/blockquote>\n Some interpreted this as a reference to a viral AI-generated video of <\/span>Trump kissing Elon Musk\u2019s feet<\/span><\/a>\u2014precisely the kind of political satire that could be subject to removal under the Act\u2019s broad definitions.<\/span><\/p>\n The bill moved unusually fast compared to previous attempts at online speech regulation. It passed both chambers without a single amendment, despite raising serious First Amendment and due process concerns. Following <\/span>the TikTok ban<\/span><\/a>, it marks another example of Congress enacting sweeping online speech restrictions with minimal debate and virtually no public process.<\/span><\/p>\n Senator Booker briefly held up the bill in mid-2024, citing concerns about vague language and overbroad criminal penalties. After <\/span>public backlash<\/span><\/a>, including pressure from victims\u2019 families, Senator Booker negotiated a few modest changes. The revised bill passed the Senate by unanimous consent in February 2025. The House advanced it in April, ignoring objections from civil liberties groups and skipping any real markup.<\/span><\/p>\n President Trump signed the TAKE IT DOWN Act into law in May. The signing ceremony made it seem even more like a thinly veiled threat toward online services that facilitate expression, rather than a legitimate effort to curb NCII. At the ceremony, First Lady Melania Trump <\/span>remarked<\/span><\/a>:<\/span><\/p>\n Artificial Intelligence and social media are the digital candy of the next generation\u2014sweet, addictive, and engineered to have an impact on the cognitive development of our children. But unlike sugar, these new technologies can be weaponized, shape beliefs, and sadly, affect emotions and even be deadly.<\/span><\/p>\n<\/blockquote>\n And just recently, FTC Chair Andrew Ferguson\u2014handpicked by Trump and <\/span>openly aligned<\/span><\/a> with his online censorship agenda\u2014<\/span>tweeted<\/span><\/a> his enthusiasm about enforcing the TAKE IT DOWN Act in coordination with the Department of Homeland Security. Yes, the same agency that has been implicated in surveilling protestors and disappearing U.S. citizens off the streets during civil unrest.\u00a0<\/span><\/p>\n Statutory Analysis<\/b><\/p>\n Despite overwhelming (and shortsighted) <\/span>support from the tech industry<\/span><\/a>, the TAKE IT DOWN Act spells trouble for <\/span>any<\/span><\/i> online service that hosts third-party content.\u00a0<\/span><\/p>\n The law contains two main provisions: one criminalizing the creation, publication, and distribution of authentic, manipulated, and synthetic NCII, and another establishing a notice-and-takedown system for online services hosting NCII that extends to a potentially broader range of online content.\u00a0<\/span><\/p>\n Section 2: Criminal Prohibition on Intentional Disclosure of Nonconsensual Intimate Visual Depictions<\/b><\/p>\n Section 2 of the Act creates new federal criminal penalties for the publication of non-consensual \u201cintimate visual depictions,\u201d including both real (\u201cauthentic\u201d) and technologically manipulated or AI-generated imagery (\u201cdigital forgeries\u201d). These provisions are implemented via amendments to Section 223 of the Communications Act and took effect immediately upon enactment.<\/span><\/p>\n Depictions of Adults<\/span><\/i><\/p>\n The statute applies differently depending on whether the depiction involves an adult or a minor. With respect to depicting adults, it is a federal crime to knowingly publish an intimate visual depiction via an interactive computer service (as defined under Section 230) if the following are met: (1) the image was created or obtained under circumstances where the subject had a reasonable expectation of privacy; (2) the content was not voluntarily exposed in a public or commercial setting; (3) the image is not of public concern; and (4) the publication either was intended to cause harm or actually caused harm (defined to include psychological, financial, or reputational injury).<\/span><\/p>\n The statute defines \u201cintimate visual depictions\u201d via 15 U.S.C. \u00a7 6851. The definition includes images showing uncovered genitals, pubic areas, anuses, or post-pubescent female nipples, as well as depictions involving the display or transfer of sexual fluids. Images taken in public may still qualify as \u201cintimate\u201d if the individual did not voluntarily expose themselves or did not consent to the sexual conduct depicted.<\/span><\/p>\n In theory, the statute exempts pornography that was consensually produced and distributed online. In practice, the scope of that exception is far from clear. One key requirement for triggering criminal liability in cases involving adults is that \u201cwhat is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting.\u201d The intent seems to be to exclude lawful adult content from the law\u2019s reach.<\/span><\/p>\n But the language is ambiguous. The statute refers to what is depicted\u2014potentially meaning the body parts or sexual activity shown\u2014rather than to the image itself. Under this reading, anyone who has ever publicly or commercially shared intimate content generally could be categorically excluded from protection under the law, even if a particular image was created or distributed without their consent. That interpretation would effectively deny coverage to adult content creators and sex workers, the very individuals who are often most vulnerable to nonconsensual republishing and exploitation of their content.<\/span><\/p>\n Depictions of Children<\/span><\/i><\/p>\n With respect to depictions of minors, the TAKE IT DOWN Act criminalizes the distribution of any image showing uncovered genitals, pubic area, anus, or female-presenting nipple\u2014or any depiction of sexual activity\u2014if shared with the intent to abuse, humiliate, harass, degrade, or sexually gratify.\u00a0<\/span><\/p>\n Although the Act overlaps with existing federal child sexual abuse material (CSAM) statutes, it discards the constitutional boundaries that have kept those laws from being struck down as unconstitutional. Under 18 U.S.C. \u00a7 2256(8), criminal liability attaches only to depictions of \u201csexually explicit conduct,\u201d a term courts have narrowly defined to include things like intercourse, masturbation, or lascivious exhibition of genitals. Mere nudity doesn\u2019t typically qualify, at least not without contextual cues. Even then, prosecutors must work to show that the image crosses a clear, judicially established threshold.<\/span><\/p>\n TAKE IT DOWN skips the traditional safeguards that typically constrain speech-related criminal laws. It authorizes felony charges for publishing depictions of minors that include certain body parts if done with the intent to abuse, humiliate, harass, degrade, arouse, or sexually gratify. But these intent standards are left entirely undefined. A family bathtub photo shared with a mocking or off-color caption could be framed as intended to humiliate or, in the worst-case reading, arouse. A public beach photo of a teen, reposted with sarcastic commentary, might be interpreted as degrading. Of course, these edge cases should be shielded by traditional First Amendment defenses.<\/span><\/p>\n We\u2019ve seen this before. Courts have repeatedly struck down or narrowed CSAM laws that overreach, particularly when they criminalize nudity or suggestive content that falls short of actual sexual conduct, such as family photos, journalism, documentary film, and educational content.\u00a0<\/span><\/p>\n TAKE IT DOWN also revives the vagueness issues that have plagued earlier efforts to curb child exploitation online. Terms like \u201charass,\u201d \u201chumiliate,\u201d or \u201cgratify\u201d are inherently subjective and undefined, which invites arbitrary enforcement. In effect, the law punishes speakers based on perceived motive rather than the objective content itself.\u00a0\u00a0<\/span><\/p>\n Yes, the goal of protecting minors is laudable. But noble intentions don\u2019t save poorly drafted laws. Courts don\u2019t look the other way when speech restrictions are vague or overbroad just because the policy behind them sounds good. If a statute invites constitutional failure, it doesn\u2019t end up protecting anyone. <\/span>In short, the TAKE IT DOWN Act replicates the very defects that have led courts to limit or strike down earlier child-protection laws.\u00a0<\/span><\/i><\/p>\n Digital Forgeries<\/span><\/i><\/p>\n The statute also criminalizes the publication of \u201cdigital forgeries\u201d without the depicted person\u2019s consent, which differs from the \u201creasonable expectation of privacy\u201d element for authentic imagery. A digital forgery is defined as any intimate depiction created or altered using AI, software, or other technological means such that it is, in the eyes of a reasonable person, indistinguishable from an authentic image. This standard potentially sweeps in a wide range of synthetic and altered content, regardless of whether a viewer <\/span>actually believed<\/span><\/i> the image was real or whether the underlying components were independently lawful.<\/span><\/p>\n Compared to existing CSAM laws, the TAKE IT DOWN Act also uses a more flexible visual standard when it comes to \u201cdigital forgeries.\u201d Under CSAM law, synthetic or computer-generated depictions are only criminalized if they are \u201cindistinguishable from that of a real minor engaging in sexually explicit conduct.\u201d That standard makes it difficult to prosecute deepfakes or AI nudes unless they are photorealistic and sexually explicit. But under TAKE IT DOWN, a digital forgery is covered if it \u201cwhen viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual.\u201d The focus isn\u2019t on whether the depiction looks like a real child in general, but whether it looks like a real, identifiable person. This makes the law far more likely to apply to a broader range of AI-generated depictions involving minors, even if the underlying content wouldn\u2019t meet the CSAM threshold. As discussed in the implications section, this too invites First Amendment scrutiny.\u00a0<\/span><\/p>\n There are several exceptions. The statute does not apply to disclosures made as part of law enforcement or intelligence activity, nor to individuals acting reasonably and in good faith when sharing content for legitimate legal, medical, educational, or professional purposes. The law also exempts people sharing intimate content of themselves (as long as it contains nudity or is sexual in nature) and content already covered by federal CSAM laws.<\/span><\/p>\n Penalties include fines and up to two years\u2019 imprisonment for adult-related violations, and up to three years for violations involving minors. Threats to publish such material can also trigger criminal liability.<\/span><\/p>\n Finally, the Act leaves unanswered whether online services could face criminal liability for failing to remove known instances of authentic or AI-generated NCII. Because Section 230 never applies to federal criminal prosecutions, intermediaries cannot rely on it as a defense against prosecution. If a service knowingly hosts unlawful material, including not just NCII itself, but threats to publish it, such as those made in private messages, the government may claim the service is \u201cpublishing\u201d illegal content in violation of the statute.<\/span><\/p>\n The Supreme Court\u2019s decision in\u00a0Taamneh<\/em><\/a><\/span>\u00a0<\/span><\/i>provides some insulation. It held that general awareness of harmful conduct on a service does not amount to the kind of specific knowledge required to establish aiding-and-abetting liability. But the TAKE IT DOWN Act complicates that picture. Once a service receives a takedown request for a particular image, it arguably acquires actual knowledge of illegal content. If the service fails to act within the Act\u2019s 48-hour deadline, it\u2019s not clear whether that inaction could form the basis for a criminal charge under the statute\u2019s separate enforcement provisions.<\/span><\/p>\n As Eric discusses below, there\u2019s also no clear answer to what happens when someone re-uploads content that had previously been removed (or even new violating content). Does prior notice of a particular individual\u2019s bad acts create the kind of ongoing knowledge that turns continued hosting into criminal publication? That scenario falls into a legal gap narrower than <\/span>Taamneh<\/span><\/i> might account for, but the statute doesn\u2019t clarify how courts should treat repeat violations.<\/span><\/p>\n Alongside its criminal provisions, the Act imposes new civil compliance obligations on online services that host user-generated content. Covered services must implement a notice-and-takedown process to remove intimate visual depictions (real or fake) within one year of the law\u2019s enactment. The process must allow \u201cidentifiable individuals\u201d or their authorized agents to request removal of non-consensual intimate images. Once a valid request is received, the service has 48 hours to remove the requested content. Failure to comply subjects the service to enforcement by the Federal Trade Commission under its unfair or deceptive practices authority.\u00a0<\/span><\/p>\n The law applies to any public-facing website, app, or online service that primarily hosts user-generated content\u2014or, more vaguely, services that \u201cpublish, curate, host, or make available\u201d non-consensual intimate imagery as part of their business. This presumably includes social media services, online pornography services, file-sharing tools, image boards, and arguably even private messaging apps. It likely includes search engines as well, and the \u201cmake available\u201d standard could apply to user-supplied links to other sites. Notably, the law excludes Internet access providers, email services, and services where user-submitted content is \u201cincidental\u201d to the service\u2019s primary function. This carveout appears designed to protect online retailers, streaming services like Netflix, and news media sites with comment sections. However, the ambiguity around what qualifies as \u201cincidental\u201d will likely push services operating in the gray zone toward over-removal or disabling functionality altogether.\u00a0<\/span><\/p>\n Generative AI tools likely fall within the scope of the law. If a system generates and displays intimate imagery, whether real or synthetic, at a user\u2019s direction, it could trigger takedown obligations. However, the statute is silent on how these duties apply to services that don\u2019t \u201chost\u201d content in the traditional sense. In theory, providers could remove specific outputs if stored, or even retrain the model to exclude certain images from its dataset. But this becomes far more complicated when the model has already \u201cmemorized\u201d the data and internalized it into its parameters. As with many recent attempts to regulate AI, the hard operational questions\u2014like how to unwind learned content\u2014are left unanswered, effectively outsourced to developers to figure out later.<\/span><\/p>\n Though perhaps inspired by the structure of existing notice-and-takedown regimes, such as the DMCA\u2019s copyright takedown framework, the implementation here veers sharply from existing content moderation norms. A \u201cvalid\u201d TAKE IT DOWN request requires four components: a signature, a description of the content, a good faith statement of non-consent, and contact information. But that\u2019s where the rigor ends.<\/span><\/p>\n There is no requirement to certify a takedown request under penalty of perjury, nor any legal consequence for impersonating someone or falsely claiming to act on their behalf. The online services, not the requester, bear the burden of verifying the identity of both the requester and the depicted individual, all within a 48-hour window. In practice, most services will have no realistic option other than to take the request at face value and remove the content, regardless of whether it\u2019s actually intimate or non-consensual. This lack of verification opens the door to abuse, not just by individuals but by third-party services. There is already a cottage industry emerging around paid takedown services, where companies are hired to scrub the Internet of unwanted images by submitting removal requests on behalf of clients, whether authorized or not. This law will only bolster that industry.\u00a0<\/span><\/p>\n The law also only requires a \u201creasonably sufficient\u201d identification of the content. There\u2019s no obligation to include URLs, filenames, or specific asset identifiers. It\u2019s unclear whether vague descriptions like \u201cnudes of me from college\u201d are sufficient to trigger a takedown obligation. Under the DMCA, this level of ambiguity would likely invalidate a request. Here, it might not only be acceptable, it could be legally actionable to ignore.<\/span><\/p>\n The statute\u2019s treatment of consent is equally problematic. A requester must assert that the content was published without consent but need not provide any evidence to support the claim, other than a statement of good faith belief. There is no adversarial process, no opportunity for the original uploader to dispute the request, and no mechanism to resolve conflicts where the depicted person may have, in fact, consented. In cases where an authorized agent submits a removal request on someone\u2019s behalf (say, a family member or advocacy group), it\u2019s unclear what happens if the depicted individual disagrees. The law contemplates no process for sorting this out. Services are expected to remove first and ask questions never.<\/span><\/p>\n Complicating matters further, the law imposes an obligation to remove not only the reported content but also any \u201cidentical copies.\u201d While framed as a measure to prevent whack-a-mole reposting, this provision effectively creates a soft monitoring mandate. Even when the original takedown request is vague or incomplete\u2014which the statute permits\u2014services are still required to scan their systems for duplicates. This must be done despite often having little to no verification of the requester\u2019s identity, authority, or the factual basis for the alleged lack of consent. Worse, online services must defer to the requester\u2019s characterization of the content, even if the material in question may not actually qualify as an \u201cintimate visual depiction\u201d under the statutory definition.<\/span><\/p>\n Lastly, the law grants immunity to online services that remove content in good faith, even if the material doesn\u2019t meet the definition of an intimate visual depiction. This creates a strong incentive to over-remove rather than assess borderline cases, especially when the legal risk for keeping content up outweighs any penalty for taking it down.<\/span><\/p>\n (Notably, neither the criminal nor civil provisions of the law expressly carve-out satirical, parody, or protest imagery that happens to involve nudity or sexual references.)<\/span><\/p>\n * * *<\/span><\/p>\n Some implications of the law:<\/span><\/p>\n Over-Criminalization of Legal Speech<\/b><\/p>\n The law creates a sweeping new category of criminalized speech without the narrow tailoring typically required for content-based criminal statutes. Language surrounding \u201charm,\u201d \u201cpublic concern,\u201d and \u201creasonable expectation of privacy\u201d invite prosecutorial overreach and post-hoc judgments about whether a given depiction implicates privacy interests and consent, even when the speaker may have believed the content was lawful, newsworthy, or satirical.<\/span><\/p>\n The statute allows prosecution not only where the speaker knew the depiction was private, but also where they merely should have known. This is a sharp departure from established First Amendment doctrine, which requires at least actual knowledge or reckless disregard for truth in civil defamation cases, let alone criminal ones.<\/span><\/p>\n The law\u2019s treatment of consent raises unresolved questions. It separates consent to create a depiction from consent to publish it, but says nothing about what happens when consent to publish is later withdrawn. A person might initially agree to share a depiction with a journalist, filmmaker, or content partner, only to later revoke that permission. The statute offers no clarity on how that revocation must be communicated and whether it must identify specific content versus a general objection.\u00a0\u00a0<\/span><\/p>\n To be clear, the statute requires that the speaker \u201cknowingly\u201d publish intimate imagery without consent. So absent notice of revocation, criminal liability likely wouldn\u2019t attach. But what counts as sufficient notice? Can a subject revoke consent to a particular use or depiction? Can they revoke consent across the board? If a journalist reuses a previously approved depiction in a new story, or a filmmaker continues distributing a documentary after one subject expresses discomfort, are those \u201cnew\u201d publications requiring fresh consent? The law provides no mechanism for resolving these questions.\u00a0<\/span><\/p>\n Further, for adult depictions, the statute permits prosecution where the publication either causes harm or was intended to cause harm. This opens the door to criminal liability based not on the content itself, but on its downstream effects, regardless of whether the speaker acted in good faith. The statute includes no explicit exception for newsworthiness, artistic value, or other good-faith purposes, nor does it provide any formal opportunity for a speaker to demonstrate the absence of malicious intent. In theory, the First Amendment (and <\/span>Taamneh<\/span><\/i>) should cabin the reach, but the text itself leaves too much room for prosecutorial discretion.<\/span><\/p>\n The law also does not specify whether the harm must be to the depicted individual or to someone else, leaving open the possibility that prosecutors could treat general moral offense, such as that invoked by anti-pornography advocates, as sufficient. The inclusion of \u201creputational harm\u201d as a basis for criminal liability is especially troubling. The statute makes no distinction between public and private figures and requires neither actual malice nor reckless disregard, setting a lower bar than what\u2019s required even for civil defamation.<\/span><\/p>\n Further, because the law criminalizes \u201cdigital forgeries,\u201d and defines them broadly to include any synthetic content indistinguishable, to a reasonable person, from reality, political deepfakes are vulnerable to prosecution. A video of a public official in a compromising scenario, even if obviously satirical or critical, could be treated as a criminal act if the depiction is deemed sufficiently intimate and the official claims reputational harm. [FN] The \u201cnot a matter of public concern\u201d carveout is meant to prevent this, but it\u2019s undefined and thus subject to prosecutorial discretion. Courts have repeatedly struggled to draw the line between private and public concern, and the statute offers no guidance.<\/span><\/p>\n [FN: Eric\u2019s addition: I call this the Anthony Weiner problem<\/a>, where his sexting recipients\u2019 inability to prove their claims by showing the receipts would have allowed Weiner to lie without accountability.]<\/p>\n This creates a meaningful risk that prosecutors, particularly those aligned with Trump, could weaponize the law against protest art, memes, or critical commentary. <\/span>Meta\u2019s prior policy<\/span><\/a>, for example, permitted images of a visible anus or close-up nudity if photoshopped onto a public figure for commentary or satire. Under the TAKE IT DOWN Act, similar visual content could become a target for prosecution or removal, especially when it involves politically powerful individuals. The statute provides plenty of wiggle room for selective enforcement, producing a chilling effect for creators, journalists, documentarians, and artists who work with visual media that is constitutionally protected but suddenly carries legal risk under this law.<\/span><\/p>\n With respect to depictions of minors, the law goes further: a person can be prosecuted for publishing an intimate depiction if they did so with the intent to harass or humiliate the minor or arouse another individual. As discussed, the definition of intimate imagery covers non-sexually explicit content, which covers content that is likely broader than existing CSAM or obscenity laws.\u00a0 This means that the law creates a lower-tier criminal offense for visual content involving minors, even if the images are not illegal under current federal law.\u00a0<\/span><\/p>\n For \u201cauthentic\u201d images, the law could easily reach innocent but revealing photos of minors shared online. As discussed, if a popular family content creator posts a photo of their child in the bathtub (content that arguably shouldn\u2019t be online in the first place) and the government concludes the poster intended to arouse someone else, that could trigger criminal liability under the TAKE IT DOWN Act. Indeed, <\/span>family vloggers have repeatedly been accused of curating \u201cinnocent\u201d content<\/span><\/a> to appeal to their adult male followers as a means of increasing engagement and revenue, despite pushback from parents and viewers. (<\/span>Parents may be part of the problem<\/span><\/a>). While the underlying content itself is likely legal speech to the extent it doesn\u2019t fall within CSAM or obscenity laws, it could still qualify as illegal content, subject to criminal prosecution, under the Act.\u00a0<\/span><\/p>\n For AI-generated images, the law takes an even more aggressive approach for minors. Unlike federal CSAM laws, which only cover synthetic images that are \u201cindistinguishable\u201d from a real minor, the TAKE IT DOWN Act applies to any digital forgery that, in the eyes of a reasonable person, appears to depict a specific, identifiable child. That\u2019s a significant shift. The higher standard in CSAM law was crafted to comply with <\/span>Ashcroft v. Free Speech Coalition<\/span><\/i>, where the Supreme Court struck down a federal ban on virtual CSAM that wasn\u2019t tied to real individuals. The Court\u2019s rationale protected fictional content, including cartoon imagery (think <\/span>a nude depiction of South Park\u2019s Eric Cartman<\/span><\/a>) as constitutionally protected speech. By contrast, the TAKE IT DOWN Act abandons that distinction and criminalizes synthetic content based on how it appears to a reasonable viewer, not whether it reflects reality or actual harm. That standard is unlikely to survive Ashcroft-level scrutiny and leaves the law open to serious constitutional challenge.<\/span><\/p>\n Disproportionate Protections & Penalties For Vulnerable Groups<\/b><\/p>\n The TAKE IT DOWN Act is framed as a measure to protect vulnerable individuals, such as the high school students victimized by deepfake NCII. Yet its ambiguities risk leaving some vulnerable groups unprotected, or worse, exposing them to prosecution.<\/span><\/p>\n The statute raises the real possibility of criminalizing large numbers of minors. Anytime we\u2019re talking about high schoolers and sharing of NCII, we have to ask whether the law applies to teens who forward nudes\u2014behavior that is unquestionably harmful and invasive, but also alarmingly common (see, e.g., <\/span>1<\/span><\/a>, <\/span>2<\/span><\/a>, <\/span>3<\/span><\/a>). While the statute is framed as a tool to punish adults who exploit minors, its broad language easily sweeps in teenagers navigating digital spaces they may not fully understand. Yes, teens should be more careful with what they share, but that expectation doesn\u2019t account for the impulsiveness, peer pressure, and viral dynamics that often define adolescent behavior online. A nude or semi-nude image shared consensually between peers can rapidly spread beyond its intended audience. Some teens may forward it not to harass or humiliate, but out of curiosity or simply because \u201ceveryone else already saw it.\u201d Under the TAKE IT DOWN Act, that alone could trigger federal criminal liability.<\/span><\/p>\n With respect to depictions of adults, the risks are narrower but still present. The statute specifies that consent to create a depiction does not equate to consent to publish it, and that sharing a depiction with someone else does not authorize them\u2014or anyone else\u2014to republish it. These provisions are intended to close familiar NCII loopholes, but they also raise questions about how the law applies when individuals post or re-share depictions of themselves. There is no broad exemption for self-publication by adults, only the same limited carveout for depictions involving nudity or sexual conduct. That may cover much of what adult content creators publish, but it leaves unclear how the law treats suggestive or partial depictions that fall short of statutory thresholds. In edge cases, a prosecutor could argue that a self-published image lacks context-specific consent or causes general harm, especially if the prosecutor is inclined to target adult content as a matter of policy.<\/span><\/p>\n At the same time, the law seems to also treat adult content creators and sex workers as effectively ineligible for protection. As discussed, prior public or commercial self-disclosure potentially disqualifies someone from being a victim of non-consensual redistribution. Instead of accounting for the specific risks these communities face, the law appears to treat them as discardable (as is typical for these communities).\u00a0<\/span><\/p>\n This structural asymmetry is made worse by the statute\u2019s sweeping exemption for law enforcement and intelligence agencies, despite their well-documented misuse of intimate imagery. Police have used real sex workers\u2019 photos in sting operations without consent, exposing individuals to reputational harm, harassment, and even false suspicion. <\/span>A 2021 DOJ Inspector General report<\/span><\/a> found that FBI agents, while posing as minors online, uploaded non-consensual images to illicit websites. This is conduct that violated agency policy but seems to be fully exempt under Take It Down. This creates a feedback loop: the state appropriates private images, recirculates them, and then uses the fallout as investigative justification.\u00a0<\/span><\/p>\n Over-Removal of Political Speech, Commentary, and Adult Content<\/b><\/p>\n Trump and his allies have a long track record of attempting to suppress unflattering or politically inconvenient content. Under the civil takedown provisions of the TAKE IT DOWN Act, they no longer need to go through the courts to do it. All it takes is an allegation that a depiction violates the statute. Because the civil standard is more permissive, that allegation doesn\u2019t have to be well-founded, it just has to allege that the content is an \u201cintimate visual depiction.\u201d A private photo from a political fundraiser, a photoshopped meme using a real image, or an AI-generated video of Trump kissing Elon Musk\u2019s feet could all be <\/span>flagged<\/span><\/i> under the law, even if they don\u2019t meet the statute\u2019s actual definition. But here\u2019s the catch: services have just 48 hours to take the content down. That\u2019s not 48 hours to investigate, evaluate, or push back, it\u2019s 48 hours to comply or risk FTC enforcement. In practice, that means the content is far more likely to be removed than challenged, especially when the requester claims the material is intimate. Services will default to caution, pulling content that may not meet the statutory threshold just to avoid regulatory risk. As we saw after FOSTA-SESTA<\/a>, that kind of liability pressure drives entire categories of speech offline.<\/span><\/p>\n Moreover, the provision requiring online services to remove identical copies of the reported content, in practice, might encourage online services to take a scorched-earth approach to removals: deleting entire folders, wiping user accounts, pulling down all images linked to a given name or metadata tag, or even removing the contents of an entire website. It\u2019s easy to see how this could be\u00a0 especially weaponized against adult content sites, where third-party uploads often blur the line between lawful adult material and illicit content.<\/span><\/p>\n Further, automated content moderation tools that are designed to efficiently remove content while shielding human workers from exposure harms may exacerbate the issue. Many online services use automated classifiers, blurred previews, and image hashing systems to minimize human exposure to disturbing content. But the TAKE IT DOWN Act requires subjective judgment calls that automation may not be equipped to make. Moderators must decide whether a depiction is truly intimate, whether it falls under an exception, whether the depicted individual voluntarily exposed themselves, and whether the requester is legitimate. These are subjective, context-heavy determinations that require viewing the content directly. In effect, moderators are now pushed back into frontline exposure just to determine if a depiction meets the statute\u2019s definition.<\/span><\/p>\n The enforcement provisions of the TAKE IT DOWN Act give the federal government\u2014particularly a politicized FTC delighting in its newfound identity as a censorship board\u2014broad discretion to target disfavored online services. A single flagged depiction labeled a digital forgery can trigger invasive investigations, fines, or even site shutdowns. Recall that The Heritage Foundation\u2019s <\/span>Project 2025 mandate explicitly calls for the elimination of online pornography<\/span><\/a>. This law offers a ready-made mechanism to advance that agenda, not only for government officials but also for aligned anti-pornography groups like NCOSE. Once the state can reframe consensual adult content as non-consensual or synthetic, regardless of whether that claim holds, it can begin purging lawful material from the Internet under the banner of victim protection.\u00a0<\/span><\/p>\n This enforcement model will also disproportionately affect LGBTQ+ content, which is already subject to heightened scrutiny and over-removal. Queer creators routinely report that their educational, artistic, or personal content is flagged as adult or explicit, even when it complies with existing community guidelines. Under the TAKE IT DOWN Act, content depicting queer intimacy, gender nonconformity, or bodies outside heteronormative standards could be more easily labeled as \u201cintimate visual depictions,\u201d especially when framed by complainants as inappropriate or harmful. For example, a shirtless trans-identifying person discussing top surgery could plausibly be flagged for removal. Project 2025 and its enforcers have already sought to collapse LGBTQ+ expression into a broader campaign against \u201cpornography.\u201d The TAKE IT DOWN Act gives that campaign a fast-track enforcement mechanism, with no real procedural safeguards to prevent abuse.<\/span><\/p>\n Selective Enforcement By Trump\u2019s FTC\u00a0<\/b><\/p>\n The Act\u2019s notice-and-takedown regime is enforced by the FTC, an agency with no meaningful experience or credibility in content moderation. That\u2019s especially clear from its attention economy <\/span>workshop<\/span><\/a>, which appear stacked with ideologically driven participants and conspicuously devoid of legitimate experts in Internet law, trust and safety, or technology policy.\u00a0<\/span><\/p>\n The Trump administration\u2019s recent purge and re-staffing of the agency only underscores the point. With internal dissenters removed and partisan loyalists installed, the FTC now functions less as an independent regulator and more as an enforcement tool aligned with the White House\u2019s speech agenda. The agency is fully positioned to implement the law exactly as Trump intends: by punishing political enemies.<\/span><\/p>\n We should expect enforcement will not be applied evenly. X (formerly Twitter), under Elon Musk, continues to host large volumes of NCII with little visible oversight. There is no reason to believe a Trump-controlled FTC will target Musk\u2019s services. Meanwhile, smaller, less-connected sites, particularly those serving LGBTQ+ users and marginalized creators, will remain far more exposed to aggressive, selective enforcement.<\/span><\/p>\n Undermining Encryption<\/b><\/p>\n The Act does not exempt private messaging services, encrypted communication tools, or electronic storage providers. That omission raises significant concerns. Services that offer end-to-end encrypted messaging simply cannot access the content of user communications, making compliance with takedown notices functionally impossible. These services cannot evaluate whether a reported depiction is intimate, harmful, or duplicative because, by design, they cannot see it. See the <\/span>Doe v. Apple case<\/span><\/a>.<\/span><\/p>\n Faced with this dilemma, providers may feel pressure to weaken or abandon encryption entirely in order to demonstrate \u201creasonable efforts\u201d to detect and remove reported content. This effectively converts private, secure services into surveillance systems, compromising the privacy of all users, including the very individuals the law claims to protect.<\/span><\/p>\n![\"\"](\"https:\/\/blog.ericgoldman.org\/wp-content\/uploads\/2025\/06\/54562799382_7fbe771154_o-300x200.jpg\")
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Section 3: Notice and Removal of Nonconsensual Intimate Visual Depictions<\/b><\/h3>\n