Congress and Trump Just Codified New Censorship Powers

Predictably, they've been seized in the name of a just cause.

According to anti-establishment sensibilities, when there’s bipartisanship in Washington, D.C., one can rest assured “our leaders” are up to no good. The policies they’re implementing are often framed in a way that makes them seem impossible to question.

Case in point: The “Tools to Address Known Exploitation by Immobilizing Technological Deepfakes on Websites and Networks Act” (TAKE IT DOWN Act), which Congress recently passed and Donald Trump signed this week.

On its face, it’s ludicrous to oppose the TAKE IT DOWN Act. The bill aims to provide a swift mechanism for taking down non-consensual intimate sexual content—whether authentic or deepfakes—and empowers the Federal Trade Commission (FTC) to enforce it. Who could oppose putting a stop to such vulgar, violative practices (deemed “non-consensual intimate visual depiction” in the bill and also frequently termed “non-consensual intimate imagery, or NCII)?

Hardly anyone, according to Congress. Only two House members voted against the bill, one of them Rep. Thomas Massie of Kentucky (he’s currently the target of the president’s ire for voting against the massive “Big Beautiful” spending bill). The TAKE IT DOWN Act sailed through the Senate with “unanimous consent.”

Beyond the narrative

While the legislation will almost certainly enable quick recourse for victims of such abusive postings, it is rife with problems. The bill has led some internet privacy and civil liberties advocates to sound the alarm on the potential for sweeping censorship.

According to the Electronic Frontier Foundation (EFF), a nonprofit focused on defending civil liberties online, “The takedown provision in TAKE IT DOWN applies to a much broader category of content—potentially any images involving intimate or sexual content—than the narrower NCII definitions found elsewhere in the bill.” But this is not the only privacy or censorship concern.

Before the bill’s passage in the House, Trump told Congress he intended to use it for himself “because nobody gets treated worse than I do online, nobody.” This sparked further concerns among critics. As EFF said, “He wants to sign the bill into law, then use it to remove content about — him. And he won't be the only powerful person to do so.” Whether or not he or other politicians will do this remains to be seen, but there are still more concerns.

EFF has further noted that the bill likely lead to the use of automated filters to identify violative content. This method is prone to errors and can flag everything from legitimate news reporting to fair use material. Further, websites and apps will have only 48 hours to take down copies of flagged material. This creates even more room for mistakes as websites and apps scramble to remove content, likely without thorough verification that it’s actually NCII. Aside from legal ramifications, TAKE IT DOWN arguably incentivizes such rushed processes by limiting liability for material taken down in error.

Additionally, the legislation fails to provide adequate safeguards for fraudulent takedown requests. This has also been the case with the Digital Millennium Copyright Act, which has at times been used in bad faith despite that law’s inclusion of language to protect against such actions. EFF notes that TAKE IT DOWN has no such language.

Yet another problematic aspect of the bill is the overall requirement that platforms monitor speech. EFF and the nonprofit Center for Democracy and Technology have both pointed out that this could easily include surveillance of encrypted communications since there are no specific exceptions for them noted in the bill. The latter group warned the legislation would “create an obligation to take down content to which a provider has no access and with which they cannot comply, or incentivize content filtering that would break encryption.”

TechDirt noted last month that there are already mechanisms in place to take down this exact type of content:

“There’s NCMEC’s [National Center for Missing and Exploited Children] ‘Take It Down’ system, which helps platforms identify and remove this content. There’s StopNCII.org, a non-profit effort that’s gotten virtually every major platform—from Meta to TikTok to Pornhub—to participate in coordinated removal efforts. These systems work because they’re precise, transparent, and focused on the actual problem.

EFF also points out that 48 states already have laws to address the problem, and victims have been able to file federal civil suits for NCII since 2022.

Few people oppose the removal of NCII, but more might object to this particular bill had these concerns been more publicized. Instead, it has been hailed across most mainstream media outlets as a victory for victims. Even Slate, itself a mainstream outlet, pointed this out in an article highlighting the bill’s problems:

“Public reception has been rapturous. CNN is gushing that ‘victims of explicit deepfakes will now be able to take legal action against people who create them.’ A few local Fox affiliates are taking the government at its word that TAKE IT DOWN is designed to target revenge porn. Other outlets, like the BBC and USA Today, led off by noting first lady Melania Trump’s appearance at the bill signing. Yet these headlines and pieces ignore TAKE IT DOWN’s serious potential for abuse.”

“So this is how liberty dies”

In addition to Trump signing the legislation this week, news broke that Kash Patel has quietly removed an internal FBI watchdog office intended to limit misuse of FISA Section 702, which has long been criticized for civil liberties violations in the form of warrantless surveillance. The watchdog group was the creation of the first Trump administration’s attorney general, William Barr.

Patel himself previously railed against Section 702 only to express support for it during his confirmation hearing. While some MAGA faithful gave him the benefit of the doubt, insisting he had to say he supported it to get into office, his removal of this watchdog entity—reportedly without explanation—suggests otherwise.

Both FISA’s Section 702 and the TAKE IT DOWN Act are bipartisan-approved (cue thunderous applause), and both pose risks to privacy and civil liberties under the guise of protection. Section 702 is supposed to help fight terrorists, while TAKE IT DOWN promises to battle digital sexual abuse. Who could argue with either of these virtuous goals? In practice, however, they expand government authority and allow for misuse at the expense of liberty in yet another business-as-usual week in politics.