Deepfakes

An anti-deepfake bill is on the verge of becoming US law despite concerns from civil liberties groups that it could be used by President Trump and others to censor speech that has nothing to do with the intent of the bill.

The bill is called the Tools to Address Known Exploitation by Immobilizing Technological Deepfakes On Websites and Networks Act, or Take It Down Act. The Senate version co-sponsored by Ted Cruz (R-Texas) and Amy Klobuchar (D-Minn.) was approved in the Senate by unanimous consent in February and is nearing passage in the House. The House Committee on Energy and Commerce approved the bill in a 49-1 vote yesterday, sending it to the House floor.

The bill pertains to “nonconsensual intimate visual depictions,” including both authentic photos shared without consent and forgeries produced by artificial intelligence or other technological means. Publishing intimate images of adults without consent could be punished by a fine and up to two years of prison. Publishing intimate images of minors under 18 could be punished with a fine or up to three years in prison.

Online platforms would have 48 hours to remove such images after “receiving a valid removal request from an identifiable individual (or an authorized person acting on behalf of such individual).”

“No man, woman, or child should be subjected to the spread of explicit AI images meant to target and harass innocent victims,” House Commerce Committee Chairman Brett Guthrie (R-Ky.) said in a press release. Guthrie’s press release included quotes supporting the bill from first lady Melania Trump, two teen girls who were victimized with deepfake nudes, and the mother of a boy whose death led to an investigation into a possible sextortion scheme.

Free speech concerns

The Electronic Frontier Foundation has been speaking out against the bill, saying “it could be easily manipulated to take down lawful content that powerful people simply don’t like.” The EFF pointed to Trump’s comments in an address to a joint session of Congress last month, in which he suggested he would use the bill for his own ends.

“Once it passes the House, I look forward to signing that bill into law. And 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,” Trump said, drawing laughs from the crowd at Congress.

The EFF said, “Congress should believe Trump when he says he would use the Take It Down Act simply because he’s ‘treated badly,’ despite the fact that this is not the intention of the bill. There is nothing in the law, as written, to stop anyone—especially those with significant resources—from misusing the notice-and-takedown system to remove speech that criticizes them or that they disagree with.”

Free speech concerns were raised in a February letter to lawmakers sent by the Center for Democracy & Technology, the Authors Guild, Demand Progress Action, the EFF, Fight for the Future, the Freedom of the Press Foundation, New America’s Open Technology Institute, Public Knowledge, and TechFreedom.

The bill’s notice and takedown system “would result in the removal of not just nonconsensual intimate imagery but also speech that is neither illegal nor actually NDII [nonconsensual distribution of intimate imagery]… While the criminal provisions of the bill include appropriate exceptions for consensual commercial pornography and matters of public concern, those exceptions are not included in the bill’s takedown system,” the letter said.

The letter also said the bill could incentivize online platforms to use “content filtering that would break encryption.” The bill “excludes email and other services that do not primarily consist of user-generated content from the NTD [notice and takedown] system,” but “direct messaging services, cloud storage systems, and other similar services for private communication and storage, however, could be required to comply with the NTD,” the letter said.

The bill “contains serious threats to private messaging and free speech online—including requirements that would force companies to abandon end-to-end encryption so they can read and moderate your DMs,” Public Knowledge said today.

Democratic amendments voted down

Rep. Yvette Clarke (D-N.Y.) cast the only vote against the bill in yesterday’s House Commerce Committee hearing. But there were also several party-line votes against amendments submitted by Democrats.

Democrats raised concerns both about the bill not being enforced strictly enough and that bad actors could abuse the takedown process. The first concern is related to Trump firing both Democratic members of the Federal Trade Commission.

Rep. Kim Schrier (D-Wash.) called the Take It Down Act an “excellent law” but said, “right now it’s feeling like empty words because my Republican colleagues just stood by while the administration fired FTC commissioners, the exact people who enforce this law… it feels almost like my Republican colleagues are just giving a wink and a nod to the predators out there who are waiting to exploit kids and other innocent victims.”

Rep. Darren Soto (D-Fla.) offered an amendment to delay the bill’s effective date until the Democratic commissioners are restored to their positions. Ranking Member Frank Pallone, Jr. (D-N.J.) said that with a shorthanded FTC, “there’s going to be no enforcement of the Take It Down Act. There will be no enforcement of anything related to kids’ privacy.”

Rep. John James (R-Mich.) called the amendment a “thinly veiled delay tactic” and “nothing less than an attempt to derail this very important bill.” The amendment was defeated in a 28-22 vote.

Democrats support bill despite losing amendment votes

Rep. Debbie Dingell (D-Mich.) said she strongly supports the bill but offered an amendment that she said would tighten up the text and close loopholes. She said her amendment “ensures constitutionally protected speech is preserved by incorporating essential provisions for consensual content and matters of public concern. My goal is to protect survivors of abuse, not suppress lawful expression or shield misconduct from public accountability.”

Dingell’s amendment was also defeated in a 28-22 vote.

Pallone pitched an amendment that he said would “prevent bad actors from falsely claiming to be authorized from making takedown requests on behalf of someone else.” He called 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 rejected in a voice vote.

The bill was backed by RAINN (Rape, Abuse & Incest National Network), which praised the committee vote in a statement yesterday. “We’ve worked with fierce determination for the past year to bring Take It Down forward because we know—and survivors know—that AI-assisted sexual abuse is sexual abuse and real harm is being done; real pain is caused,” said Stefan Turkheimer, RAINN’s VP of public policy.

Cruz touted support for the bill from over 120 organizations and companies. The list includes groups like NCMEC (National Center for Missing & Exploited Children) and the National Center on Sexual Exploitation (NCOSE), along with various types of advocacy groups and tech companies Microsoft, Google, Meta, IBM, Amazon, and X Corp.

“As bad actors continue to exploit new technologies like generative artificial intelligence, the Take It Down Act is crucial for ending the spread of exploitative sexual material online, holding Big Tech accountable, and empowering victims of revenge and deepfake pornography,” Cruz said yesterday.