Lawfare Daily: Digital Forgeries, Real Felonies: Inside the TAKE IT DOWN Act
May 6, 2025
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Mary Anne Franks, an advocate for cyber civil rights and professor at George Washington Law School, joins Becca Branum from the Center for Democracy and Technology and Adam Conner of the Center for American Progress. They discuss the TAKE IT DOWN Act, a landmark federal law targeting non-consensual intimate imagery and digital forgeries. The conversation delves into its bipartisan support, the balance between protecting victims and free speech, and concerns over potential censorship and enforcement challenges that may arise.
The TAKE IT DOWN Act criminalizes non-consensual intimate imagery at the federal level, streamlining regulations that previously varied by state.
Despite bipartisan support, concerns remain regarding potential censorship and the broad language in the takedown provision of the Act.
The Act imposes strict responsibilities on tech platforms to remove NCII within 48 hours, raising questions about compliance and the handling of false claims.
Deep dives
Overview of the Take It Down Act
The Take It Down Act aims to address the issue of non-consensual intimate imagery (NCII) by criminalizing the online publication of intimate visual depictions without consent, including both authentic images and deepfakes. This act requires online platforms to remove reported NCII within 48 hours of notification from the depicted individual or their representative. There are also provisions for penalties, including fines and imprisonment, to enforce compliance with the act. Although many support this legislation as a necessary step to combat image-based sexual abuse, concerns have been raised about potential overreach and censorship.
The Importance of Criminalization
One of the significant aspects of the Take It Down Act is the criminalization of non-consensual intimate imagery at the federal level, which marks a shift from a patchwork of state laws to more uniform federal regulations. Previously, only three states criminalized NCII, but due to advocacy efforts, that number has expanded to 49 states, with South Carolina as the lone holdout. Advocates argue that a federal law is essential for establishing a clearer definition and creating a deterrent effect against the distribution of such materials. However, there are concerns about loopholes in the legislation, particularly regarding exceptions for individuals who might share their own intimate images.
Concerns About the Takendown Provision
The takedown provision of the Take It Down Act raises significant concerns regarding potential censorship and the broad reach of the law. Critics argue that the vague language in the takedown section could lead to the improper removal of content that does not meet the criteria for NCII, thereby infringing on free speech. Furthermore, there are fears that without a clear and rigorous appeals process, platforms may err on the side of caution and remove a wider array of content than intended. This could ultimately create an environment of self-censorship among users as platforms react to the threat of enforcement from authorities.
The Role of Technology Platforms
The Take It Down Act places notable responsibilities on technology platforms regarding the identification and removal of NCII. Platforms are mandated to establish a notice-and-takedown system that allows victims or their representatives to request content removal. However, critics question whether platforms will implement these provisions effectively and with the necessary diligence, especially given the potential for bad-faith complaints. There are also concerns that smaller platforms, lacking resources, might struggle to comply with the stringent 48-hour removal deadline, leading to inconsistent enforcement across different services.
Future Implications and Broader Trends
Looking ahead, the Take It Down Act may serve as both a positive advancement in the fight against image-based abuse and a cautionary tale of content regulation. The effectiveness of this legislation largely depends on how it will be implemented and whether it can strike a balance between protecting victims and safeguarding free expression. Additionally, there is apprehension about the potential for this model to be applied to other contentious content areas in the future, raising concerns about the broader implications for speech regulation online. The success or failure of this act could shape future legislative approaches to online content and user rights.
The TAKE IT DOWN Act is the first major U.S. federal law to squarely target non‑consensual intimate imagery (NCII) and to include a component requiring tech companies to act. Long handled via a patchwork of state laws, it criminalizes NCII at the federal level—both authentic images and AI-generated digital forgeries—and requires that platforms remove reported NCII within 48 hours of notification by a victim or victim's representative. TAKE IT DOWN passed with wide bipartisan support—unanimously in the Senate, and 409-2 in the House. Melania Trump championed it, and it is expected that President Trump will sign it. And yet, some of the cyber civil rights organizations that have led the fight to mitigate the harms of NCII over many years have serious reservations about the bill as passed. Why?
Lawfare Contributing Editor Renée DiResta sits down with Mary Anne Franks, President and Legislative & Technology Policy Director at the Cyber Civil Rights Initiative, and Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington Law School; Becca Branum, Deputy Director of the Free Expression Project at the Center for Democracy & Technology; and Adam Conner, Vice President, Technology Policy at the Center for American Progress to unpack what the bill does, why it suddenly cruised through on a rare bipartisan wave of support, and whether its sweeping takedown mandate will protect victims or chill lawful speech. This is a nuanced discussion; some of the guests support specific aspects of the bill, while disagreeing about the implementation of others. Expect clear explanations, constructive disagreement, and practical takeaways for understanding this important piece of legislation.
