TAKE IT DOWN Act: Why Congress Is On Solid Legal Ground

A rare bipartisan consensus is forming on Capitol Hill this spring, presenting an opportunity for Congress to pass legislation aimed at protecting children online and compelling tech companies to address abusive content on their platforms.

The TAKE IT DOWN Act: Stopping the Spread of NCII

The proposed TAKE IT DOWN Act seeks to combat the alarming rise of non-consensual intimate images (NCII) online. Having already passed unanimously in the Senate, the bill is now under consideration in the House, with President Trump signaling his intent to sign it into law if passed.

While the bill gains momentum, some critics are questioning its constitutionality, particularly concerning the removal of NCII. However, it’s crucial to clarify the TAKE IT DOWN Act’s provisions for empowering survivors while safeguarding online speech.

The Devastating Consequences of Inaction

NCII, encompassing both real and deepfake sexual images shared without consent, inflicts significant emotional, reputational, psychological, and financial harm. The rise of generative AI has exacerbated the problem, increasing the realism and accelerating the production and distribution of NCII.

The FBI has issued warnings about the surge in the financial exploitation of minors through the dissemination of sexually explicit content. Furthermore, malicious actors are increasingly using AI to exploit photos posted on social media.

Despite these alarming trends, tech giants like Meta and Google have been slow to implement effective policies for swiftly removing deepfake NCII. Meta’s oversight board has acknowledged that the company’s policies are insufficiently clear and too narrow to address manipulation techniques, especially those involving generative AI.

Key Provisions of the TAKE IT DOWN Act

• Criminalizes the publication of NCII, including AI-generated NCII.
• Requires social media platforms to establish a process for victims to request expedited removal of NCII in good faith.
• Empowers the Federal Trade Commission to hold companies accountable for failing to act.

Why Congress Is On Firm Legal Footing

The First Amendment does not protect harmful content like child sexual abuse materials (CSAM), obscenity, and speech integral to crime.

The Supreme Court has consistently upheld the constitutionality of laws protecting the well-being of children, even when such laws affect constitutionally protected rights.

The TAKE IT DOWN Act and the Constitution

The speech regulated by the TAKE IT DOWN Act falls outside First Amendment protection, often involving CSAM, materials used for sexual extortion, or speech integral to violating state and federal laws.

The bill is narrowly tailored to serve compelling government interests, including protecting privacy and safeguarding individuals from sexual harassment, abuse, and humiliation.

The TAKE IT DOWN Act requires proof that a person “knowingly” published the NCII, and includes specific intent requirements for cases involving minors and non-minors.

The bill excludes matters of “public interest or concern” and “commercial pornography,” and contains exceptions for legitimate purposes.

Restricting NCII is not a threat to art, education, or public debate; it simply restricts the publication of a well-defined term and facilitates its removal online.

Addressing Concerns and Mischaracterizations

Claims that the TAKE IT DOWN Act will stifle commercial speech are unfounded. The bill’s definition of “intimate visual depiction” expressly excludes “matters of public concern or public interest” and “commercial pornographic content.”

Concerns that the bill could be misused are addressed by built-in safeguards, including strict definitions, high evidentiary burdens, and FTC oversight.

Conclusion

The TAKE IT DOWN Act provides a vital framework for combating the spread of NCII while protecting online safety. Congress must act now to address this urgent issue, and additional delays are unacceptable.

Author: Slade Bond, Chair of Public Policy and Legislative Affairs at Cuneo, Gilbert, & LaDuca, LLP.