Summary of "Lawfare Daily: Digital Forgeries, Real Felonies: Inside the TAKE IT DOWN Act"

Release Date: May 6, 2025

Introduction

In this episode of The Lawfare Podcast, hosted by Renee DiResta from the Lawfare Institute, experts delve into the intricacies of the TAKE IT DOWN Act—a significant piece of legislation poised to transform federal responses to non-consensual intimate imagery (NCII). The discussion features Marianne Franks of the Cyber Civil Rights Initiative, Becca Barnum from the Free Expression Project at the Center for Democracy and Technology, and Adam Connor from the Center for American Progress. Together, they explore the bill's provisions, potential implications, and the concerns surrounding its implementation.

Overview of the TAKE IT DOWN Act

Acronym and Purpose

The TAKE IT DOWN Act stands for the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act. Its primary objective is to address the proliferation of NCII, including both authentic and AI-generated deepfakes, by imposing federal penalties and enforcing stringent platform responsibilities.

Key Provisions

1. Criminalization of NCII:

   • Definition: Making it a federal crime to knowingly publish or threaten to publish intimate images without the subject's consent.
   • Scope: Applies to both authentic images and synthetic deepfakes.
   • Penalties: Includes fines and imprisonment.

2. Platform Responsibilities:

   • Notice and Takedown: Platforms must remove reported NCII within 48 hours of notification by the individual depicted or their representative.
   • Elimination of Duplicates: Platforms are required to eradicate all copies of the infringing content, with criminal penalties for non-compliance.

3. Enforcement Mechanism:

   • Federal Trade Commission (FTC): Tasked with enforcing the act, treating violations as deceptive trade practices.

Guest Perspectives

Marianne Franks: Support and Reservations

Marianne Franks, representing the Cyber Civil Rights Initiative, underscores the importance of federal legislation in standardizing the definitions and penalties associated with NCII, noting that "there are 49 states now criminalizing image-based sexual abuse" ([02:06]). She praises the bill's criminal provisions but expresses concern over a loophole:

"There's a massive exception that's written into the bill that says these criminal penalties don't apply if it is a... If the person distributing or possessing the image is the person in the image." ([05:46])

Franks emphasizes that while the criminal aspects are robust, the exception could undermine the bill's effectiveness by allowing potential abuse.

Becca Barnum: Free Expression and Overbreadth Concerns

Becca Barnum from the Free Expression Project acknowledges the bill's positive strides in recognizing and addressing genuine harms but voices apprehension regarding the notice and takedown provisions. She warns that the broad definitions may inadvertently lead to the censorship of lawful content:

"The problem comes, it gets tricky as it relates to the definitions and the ambiguity." ([19:59])

Barnum fears that ambiguous language could enable over-enforcement, affecting speech that should remain protected under the First Amendment.

Adam Connor: Policy Implications and FTC's Role

Adam Connor of the Center for American Progress provides insights into the legislative process and the FTC's capacity to enforce the act amidst political pressures:

"There was a ton of stuff, cancer research and other things in that CR that they sank." ([20:17])

Connor highlights the challenges the FTC might face in impartially enforcing the act, especially given its politicized environment and resource constraints.

Key Discussions

Terminology and Definitions

A significant portion of the discussion revolves around the terminology used in the bill. Franks prefers "sexually explicit digital forgery" over the colloquial term "deepfake", arguing that the latter lacks precision and may contribute to confusion:

"I've never really been comfortable with that term, given that this is not really a, you know, that's not a real term." ([08:24])

Legislative Momentum and Political Context

Franks expresses skepticism about the sudden bipartisan support the bill garnered, attributing it to a politicized environment influenced by high-profile endorsements rather than purely on constitutional merits:

"I think it's a bittersweet moment... But it's a little bitter in that that work is culminating and coming to fruition along with our takedown mechanism." ([13:17])

Connor adds that the bill's passage was influenced by both advocacy efforts and the political landscape shaped by figures like Elon Musk and Donald Trump:

"But I think this is a story both of I think, Marianne, you've described this as like a bittersweet moment that really resonated with me." ([13:17])

Enforcement Mechanisms and Concerns

Becca Barnum elaborates on the notice and takedown system, recognizing its potential benefits for victims but cautioning against its implementation ambiguities:

"It's the effect on everything that's not non consensual imagery that CDT has concerns with." ([19:59])

The comparison to the Digital Millennium Copyright Act (DMCA) arises, with both guests pointing out risks of overcompliance and misuse:

"There's a lot of concern about overcompliance, about again, overuse of DMCA to take down speech that should not be taken down." ([27:44])

Constitutional Considerations

Franks raises substantial First Amendment concerns, emphasizing the provision's overbreadth and vagueness:

"I do think that there is a very key overbreadth challenge." ([45:50])

These challenges question whether the law infringes upon protected speech rights, potentially rendering portions of the act unconstitutional.

Potential Impacts and Future Outlook

The guests debate whether the act will ultimately be a net positive or a cautionary tale. While the criminalization of NCII is largely supported, the notice and takedown provisions introduce complexities that could hinder free expression and lead to unintended censorship.

Becca Barnum expresses a commitment to maximize the bill's benefits while mitigating its drawbacks through advocacy and careful interpretation:

"I think there is a world in which Congress could have passed a constitutional and privacy protective takedown mechanism to help victims." ([44:03])

Conversely, Franks fears that the act's current form may confuse efforts to combat NCII and offer false hope to victims, potentially exacerbating the problem rather than resolving it.

Conclusion

The TAKE IT DOWN Act represents a pivotal moment in federal efforts to combat non-consensual intimate imagery. While its criminal provisions address long-standing gaps in state laws, the accompanying platform responsibilities and enforcement mechanisms raise significant concerns about potential overreach and constitutional violations. As the act awaits presidential signature, its implementation and subsequent legal challenges will likely shape the future landscape of online privacy, free expression, and victim support in the digital age.

Notable Quotes:

• Marianne Franks ([05:46]):

  "There's a massive exception that's written into the bill that says these criminal penalties don't apply if it is a... If the person distributing or possessing the image is the person in the image."

• Becca Barnum ([19:59]):

  "It's the effect on everything that's not non consensual imagery that CDT has concerns with."

• Marianne Franks ([45:50]):

  "I do think that there is a very key overbreadth challenge."

• Becca Barnum ([44:03]):

  "I think there is a world in which Congress could have passed a constitutional and privacy protective takedown mechanism to help victims."

This summary encapsulates the multifaceted discussion surrounding the TAKE IT DOWN Act, highlighting both its intended benefits and the apprehensions it has sparked among experts. As stakeholders navigate this complex legislation, the balance between protecting individuals and preserving free expression remains at the forefront of the debate.