MORGANTOWN — The state Legislature made several attempts to criminalize deepfake, AI-generated pornography during its regular session earlier this year. They all perished in the chaos and squabbling of the closing days.
But U.S. Sens. Joe Manchin and Sen. Shelley Moore Capito have joined with other colleagues to take the problem up at the federal level.
Led by Sen. Ted Cruz, R-Texas, they’ve introduced the TAKE IT DOWN Act (with the usual congressional fondness for acronyms, short for the Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act).
The bipartisan bill would criminalize the publication of non-consensual, intimate imagery (NCII), including AI-generated NCII — deepfake pornography — and require social media and similar websites to have procedures to remove content upon notification from a victim.
Manchin said that by requiring a notice and takedown process from websites that contain user-generated content, including social media sites, the act will ensure that, if the content is published online, victims are protected from being re-traumatized again and again.
“I’m proud to join my bipartisan colleagues in introducing the TAKE IT DOWN Act to protect Americans, and especially young women and girls, from the disturbing trend of ‘deepfakes’ on the internet,” Manchin said. “As artificial intelligence continues to evolve, we have a responsibility in Congress to combat the threats that grow alongside of it, which includes holding individuals accountable for non-consensual, intimate images they post online.
Manchin is chairman of the Senate Armed Services Cybersecurity Subcommittee.
Capito noted that while nearly every state has a law protecting people from NCII, including 20 states with laws explicitly covering deepfake NCII, the laws vary in classification of crime and penalty and have uneven criminal prosecution. Further, victims struggle to have images depicting them removed from websites, increasing the likelihood the images are continuously spread and victims are re-traumatized.
She said that in 2022, Congress passed legislation creating a civil cause of action for victims to sue individuals responsible for publishing NCII. However, bringing a civil action can be incredibly impractical. It is time-consuming, expensive and may force victims to relive trauma. Further exacerbating the problem, it is not always clear who is responsible for publishing the NCII.
She commented on the act, “Social media platforms and those that distribute revenge porn need to be held accountable. Our bill will make sure that even computer-generated deepfakes will not be allowed to stay online. I am proud to stand with my colleagues to help stop this sickening practice that has become far too common.”
Bill provisions
The TAKE IT DOWN Act would:
Criminalize the publication of NCII in interstate commerce. The bill makes it unlawful for a person to knowingly publish NCII on social media and other online platforms. NCII is defined to include realistic, computer-generated pornographic images and videos that depict identifiable, real people. The bill also clarifies that a victim consenting to the creation of an authentic image does not mean that the victim has consented to its publication.
Protect good faith efforts to assist victims. The bill permits the good faith disclosure of NCII, such as to law enforcement, in narrow cases.
Require websites to take down NCII upon notice from the victim. Social media and other websites would be required to have in place procedures to remove NCII, pursuant to a valid request from a victim, within 48 hours. Websites must also make reasonable efforts to remove copies of the images. The FTC is charged with enforcement of this section.
Protect lawful speech. The bill is narrowly tailored to criminalize knowingly publishing NCII without chilling lawful speech. The bill conforms to current first amendment jurisprudence by requiring that computer-generated NCII meet a “reasonable person” test for appearing to realistically depict an individual.
Failed state bills
SB 740 would have made it a felony for any person to modify or otherwise change a photograph, image, video clip, movie, or recording containing sexually explicit conduct by the insertion therein of a visual image of an actual minor so as to create the appearance that it is the actual minor engaged in the sexually explicit conduct. The House amended it on Day 59 and the Senate let it die.
SB 741 would have criminalized child pornography that does not depict an actual minor but a digitally or AI-generated porn that convincingly appears to be a minor. House Judiciary amended into it a bill to strike from state code the exemptions for public and school libraries regarding displaying or disseminating obscene material to minors — known as the book-ban bill. SB 741 then died on the House floor.
HB 5516 would have criminalized the use of deepfakes in revenge porn and child porn. It passed 96-0 at the end of February and was never taken up by the Senate.
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