New Federal Law Criminalizes Online Sharing of “Revenge Porn” and Requires Websites to Remove Images on Request

As we have previously written, most states have passed legislation in recent years to criminalize the distribution of non-consensually distributed intimate images, often known as “revenge porn.” The federal Violence Against Women Act also allows victims of revenge porn to sue in federal court for damages caused by the sharing of sexually graphic images of them. The recently-enacted Take It Down Act is a new federal statute that makes it a federal offense to publish, or threaten to publish, intimate images or deepfakes (which the Act refers to as “digital forgeries”) without the consent of the person shown in the image, and requires online platforms to remove such images within forty-eight hours of a removal request.  

Passage of the bipartisan legislation has been welcomed as a step toward curbing online harassment and exploitation, a problem that is only becoming more widespread as AI makes it easier to access sexual images and create fake ones. Yet as with other laws aimed at regulating online content, the new statute is open to potential challenges, largely on free speech grounds.  

Criminal offense and penalties  

The Act makes it a crime to use an online platform to knowingly publish an intimate image of another person or a deepfake, if the person had a reasonable expectation of privacy when the image was originally created or shared, and they did not voluntarily publicize the image. A person can only be convicted under the statute if they published the image with the intention of causing harm, or if the publication did in fact cause harm, to the person in the image. If the image is of a minor, there is no requirement to prove that the minor had an expectation of privacy, and the intent requirement is that the publication was intended to “abuse, humiliate, harass, or degrade” the minor, or to “arouse or gratify the sexual desire of any person.” The law contains exceptions for several types of disclosure or sharing of images in good faith, such as disclosing images to law enforcement or for the purpose of assisting someone whose images have been made public without their consent.  

Violations of the criminal provisions of the Act are punishable by a fine or by incarceration of up to two years (three years for offenses involving a minor). The Act has no preemption provision, which means that states may still prosecute revenge porn cases under their own criminal laws.  

Notice and takedown provisions  

In addition to its criminal provisions, the Take It Down Act requires online platforms to remove intimate images from their sites within forty-eight hours of receiving a valid removal request from a person shown in those images or their representative. The Act gives platforms one year to establish a process for requesting removal and to put a clearly-visible notice of that process on their website. Any platform that fails to follow the requirements is subject to enforcement action by the Federal Trade Commission.  

Potential free speech challenges  

The Take it Down Act raises some potential free speech concerns. The criminalization of deepfakes featuring minors could be challenged as unconstitutional under a Supreme Court precedent that struck down a statute that would have banned “virtual child pornography,” meaning computer-generated content showing sexual activity among minors. The question in that case was whether Congress could ban forms of expression that did not fall within either the existing definition of “obscenity” or the existing definition of child pornography, because no children were subjected to abuse or harm in the process of making the content. The Court held that criminalizing virtual child pornography would violate the First Amendment because the content does not depict actual children, overruling arguments that such content can lead to or promote actual child abuse. The criminal offense created under the Take It Down Act is open to a challenge on these grounds because a deepfake or digital forgery, as defined in the Act, is created using a software program, AI, or “any other computer-generated or technological means.” That include images created by “adapting, modifying, manipulating, or altering” an authentic image. In other words, the image is AI-generated or digitally altered so it appears to show a minor engaging in sexual activity that they did not in fact engage in. This comes close to the type of virtually-created content the Supreme Court has held to be constitutional, however because the images criminalized under the Act involve identifiable minors, there is a real-life victim involved, and therefore direct harm to a minor that does not exist when images are entirely computer-generated. The Act’s intent requirement—that the images were shared knowingly and with the intention of abusing or harassing a child or to arouse another person—also seems designed to prevent the criminalization of legitimate artistic expression such as films or photography involving teenage sexual activity.   

Other provisions of the Act also seem designed to address free speech concerns: images that speak to a matter of public concern cannot form the basis for criminal prosecution. There is also a safe harbor provision under which online platforms cannot be held liable for disabling access to or removing material that is claimed to be a nonconsensual intimate image, even if the image is ultimately determined to be lawful. With these and other provisions, the Take it Down Act attempts to thread the needle of preventing online abuse without overreaching into protected speech; it remains to be seen how courts will interpret and apply the law. 

If you have a case involving the Take it Down Act or similar laws, please contact our attorneys at (617) 742-6020.