A “Victory for Survivors” or “Bittersweet News”—Experts React to Passage of the TAKE IT DOWN Act

After more than a decade of pressure from survivor advocates, the United States Congress has finally passed the first national restriction on image-based sexual abuse (IBSA). Still, a contentious takedown provision has raised alarms among some experts, who warn the groundbreaking legislation could ultimately do more harm than good for victims.

Introduced by a bi-partisan coalition led by Senators Ted Cruz (R-TX) and Amy Klobuchar (D-MN), the “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act”—better known as the “TAKE IT DOWN Act”—was passed in a 409-2 vote by the House of Representatives on Tuesday, after unanimously passing the Senate in February. The bill is expected to be signed by President Donald Trump soon.

The law criminally prohibits the “intentional disclosure of nonconsensual intimate visual depictions” of both minors and adults, including deepfakes and other manipulated images “of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means.”

Violations of the new law, which First Lady Melania Trump championed, will be punishable by up to 2 years imprisonment in cases involving adult victims, and up to 3 years in cases involving minor victims.

“I am elated that we have reached the final step to getting this impactful legislation signed into law,” Omny Miranda Martone, CEO of the Sexual Violence Prevention Association, wrote on LinkedIn on Tuesday. “As a survivor of deepfake pornography, this is even more personally impactful. I know firsthand the devastating effects that non-consensual explicit materials (NCEM) have on a person’s life, safety, and mental health.”

“TAKE IT DOWN is a victory for survivors of this criminality,” said Eleanor K. Gaetan, Director of Public Policy at the National Center on Sexual Exploitation, in a press release. “It will ultimately prevent mass-scale sexual abuse and reshape the online ecosystem to better prioritize combating image-based sexual abuse.”

Yet the bill is not without its detractors. The expert criticism of TAKE IT DOWN primarily focuses on a specific part of the law, known as a takedown provision, which mandates that “covered platforms” (websites, online services, and applications) remove nonconsensual intimate visual depictions within 48 hours of being alerted to their existence, either by the person depicted, or someone acting on their behalf.

First Amendment lawyers at the Cyber Civil Rights Initiative, the Center for Democracy and Technology, Electronic Frontier Foundation, and other organizations, have argued that this provision lacks safeguards against false reports, and may be used to censor content which is lawfully protected, but frequently targeted for moral shaming, such as commercially-produced pornography or photojournalism containing nudity.

In a press release published Tuesday, Dr. Mary Anne Franks, President of Cyber Civil Rights Initiative, called the provision “highly susceptible to misuse” and likely to be “counter-productive for victims.” In a corresponding LinkedIn post, Franks called the bill’s passage “bittersweet,” saying:

I am gratified that the bill incorporates much of the language of the model federal statute against NDII I first drafted in 2013 and much of the language I have developed on sexually explicit forgeries. But the TAKE IT DOWN Act also includes a poison pill: an extremely broad takedown provision that will likely end up hurting victims more than it helps.

Similarly, Jason Kelley, Activism Director at the Electronic Frontier Foundation (EFF), warned in a public statement that the law could be used by politicians, including Trump, “to manipulate platforms into removing lawful speech that they simply don't like.”

Notably, the president has publicly supported the bill along with his wife, saying, “I’m going to use that bill for myself too, if you don’t mind, because nobody gets treated worse than I do online, nobody.”

Nick Garcia, Senior Policy Counsel at Public Knowledge, echoed Kelley’s concerns in a statement, arguing that the law’s “enforcement authority granted to the Federal Trade Commission raises concerns at a time when the agency’s independence and capacity are under direct threat by the Trump administration.”

A report from the technology website Ars Technica says that several Democratic representatives in the House previously proposed amendments to TAKE IT DOWN that would have addressed these concerns, but ultimately still supported the bill when those amendments were voted down. Rep. Frank Pallone, Jr. (D-NJ), for example, proposed an amendment intended to mitigate false reports, calling it a "common sense guardrail to protect against weaponization of this bill to take down images that are published with the consent of the subject matter of the images." The amendment was ultimately defeated.

“This was a chance to get it right,” Garcia said of the legislative effort, “but unfortunately, Congress only got it half right – and half-right laws can do real damage.”

When asked about her perspective relating to the criticism facing TAKE IT DOWN, Nina Jankowicz, a prominent disinformation researcher and CEO of the American Sunlight Project, wrote via email on Tuesday:

When I was weighing up my support for the bill, I thought back to the morning I discovered the deepfakes of myself, and how nauseous I felt. No one should have to go through that, let alone as a preteen, and we now have an epidemic of young women targeted with this abuse who have no recourse. They couldn't wait another moment, and neither could I.

Whether the bill will face a legal challenge is unclear.