The Take It Down Bill: A Comparison with State Tort Remedies
On March 3rd, 2025, First Lady, Melania Trump visited Capitol Hill to urge Congress to vote for the Take It Down bill.[1] The bill has passed the Senate with bipartisan support, co-sponsored by Republican Ted Cruz and Democrat Amy Klobuchar, but the bill still needs to pass the House of Representatives.[2]
The Take It Down bill would make it a crime to post “intimate visual depiction[s] of an identifiable individual” online without an individual’s consent if the post is intended to cause harm or does cause harm, including “psychological, financial, or reputational harm.”[3] The bill covers actual images and computer-generated images.[4] The Take It Down bill would also require internet service providers to implement notice and removal procedures and remove offending content within 48 hours.[5]
The bill allows for fines and imprisonment up to two years for an offense against an adult victim and up to three years imprisonment for an offense against a minor.[6] Notably, the punishment does not vary depending on whether the offending image is a real image or a “digital forgery.” [7]. Further, the bill also criminalizes threats to carry out such offenses.[8]
The Take it Down bill would supplement a patchwork of federal law, state criminal laws, and state common law remedies.[9] There are various federal laws that could be construed to cover non-consensual pornography, real or deepfakes, but these statutes each have limitations.[10] While a large majority of states have laws criminalizing non-consensual pornography, these laws are often viewed as inadequate to successfully deter this conduct.[11] Given the nature of internet-related crimes, the limited jurisdiction of state prosecutors works against successful prosecution.[12]
State tort law has provided redress to victims of image-based sexual abuse.[13] Perhaps most notably, intentional infliction of emotional distress has been claimed in numerous cases where victims’ intimate images were distributed without their consent.[14] However, there are several limitations to the viability of this tort action as a method of addressing the harms suffered by the victim and deterring this conduct.[15] First, Section 230 serves to prevent the imposition of civil liability on internet service providers when its users post tortious content.[16] While the interplay of these statutes remains to be seen, the Take it Down bill purports to require these providers to remove offending content notwithstanding Section 230.[17] Another limitation is that even the tort of intentional infliction of emotional distress requires the victim to manifest some bodily harm.[18] The Senate Take It Down bill expressly dictates that physical harm is not required.[19] Lastly, a victim’s use of tort law is limited by their financial resources and their willingness to subject themselves to further public scrutiny.[20]
The Take it Down Bill has the potential to further deter the nonconsensual distribution of intimate images by directly criminalizing the conduct at the federal level and requiring removal of offending conduct by internet service providers.
Footnotes
