'Take It Down' Act purports to redress revenge porn, but invites censorship by only incentivizing take-down

Derived from Google Gemini, RJ Peltz-Steele CC0

President Trump signed into law bipartisan federal revenge porn legislation Monday—alas, not in time for inclusion in 2 Tortz (2025 ed.)—but all is not sunshine and rainbows.    

First, it must be noted, and news media seem widely oblivious to the fact that, Congress, per the Commerce Clause, created a federal civil action for revenge porn already in 2022, in the quinquennial reauthorization of the Violence Against Women Act. The law is codified at 15 U.S.C. § 6851.

The TAKE IT DOWN Act, signed into law Monday, ups the stakes by criminalizing revenge porn at the federal level. The law also is broader in scope than existing law. With the new act, the federal government joins the majority of states in tackling deepfake sexual images, besides authentic images. And as Sunny Gandhi and Adam Billen explained for Tech Policy Press, Take It Down extends to "nude images published with the intent to 'abuse, humiliate, harass, or degrade' a minor rather than only 'sexually explicit' images."

The law's means, though, subordinate free speech to purported privacy rights. Right there in the name, Take It Down introduces a requirement that platforms remove non-consensual intimate imagery within 48 hours of a complaint. As Jason Kelley of the Electronic Frontier Foundation (EFF) observed, that's hardly enough time to investigate the context of an image or rights to it, even if a platform were so inclined. 

Rather, Take It Down emulates the notice-and-take-down regime of the intellectual property system, which has resulted in excessive removal of content upon complaint at the expense of fair, authorized, and otherwise protected uses. A poster is afforded little or no opportunity to object to take-down, or to remediate any perceived wrong; rather, the system errs on the side of censorship.

In Take It Down, the addition of criminal penalties further incentivizes prophylactic take-down, with no corresponding incentive to hear an objection or to exercise judgment. The penalties if wrongfully posted content remains online are severe, while there is no risk in excessive removal. As Kelley further observed, for large platforms such as Meta, that calculus incentivizes the blunt use of AI and automation to effect take-down, errors be damned.

Worse, an automated, prophylactic take-down process is susceptible of ill intentioned manipulation.

"President Trump himself has said that he would use the law to censor his critics," Kelley reminded readers.

Take It Down seeks to address a real problem, but takes the easy way out. The law panders to advocates for protective legislation, allowing legislators to take credit for "solving" the problem. Meanwhile, the law gives the corporatocracy a pass on meaningful responsibility and invites political opportunists to obliterate free speech and sow misinformation in its place. 

O Congress. "Bipartisanism ain't all it's cracked up to be."