Congress passes Take It Down act despite major flaws | Hacker News Reader

Congress passes Take It Down act despite major flaws

eff.org

250 pointsabtinf105 comments

I believe what EFF and Mike Masnick have to say about it: it's the most forseeably abusable internet censorship law (so far), and it's a crying shame HN isn't confident enough to look past the good intention of it to recognize that.

How have DMCA takedowns gone? How many upstanding developers have been nuked, without recourse, by some invalid or malevolent false report? How many times over and over[0] has HN loudly lamented the DMCA takedowns, decried how awful it is to have state censorship—and one without any meaningful adversarial process?

Well, here we are again: "The takedown provision also lacks critical safeguards against frivolous or bad-faith takedown requests".

If courts don't strike this down, this might end up becoming DMCA for the whole of society. It'll certainly be used by politicians to silence critics. It'll be overrun by trolls. You'll see the results, and you'll hate them.

> "And I’m going to use that bill for myself too, if you don’t mind, because nobody gets treated worse than I do online, nobody.”"

[0] https://hn.algolia.com/?query=dmca&type=all

> How many times over and over[0] has HN loudly lamented the DMCA takedowns, decried how awful it is to have state censorship—and one without any meaningful adversarial process?

DMCA does have an adversarial process. You're more likely thinking of e.g. YouTube's automatic DMCA-like process.

> DMCA does have an adversarial process. You're more likely thinking of e.g. YouTube's automatic DMCA-like process.

But that adversarial process has timelines that require removal for a minimum of ten days. Which is plenty of time to cause damage.

That process means fuck all because the providers who honor DMCA takedowns often do so instantly, but basically say “you can never host this content here again, ever” and don’t give any fucks about whatever stupid appeal process you do. I had Heroku take down my business with zero notice due to a malicious dmca and did exactly this. They offered zero paths other than “get a different provider”. They also disabled my entire account and all of my sites, not just the allegedly offending site. They refused to even respond to any further inquiries on the matter

This is a decision of Heroku, not something required of the DMCA

The incentives are structured to make immediate takedown the path of least resistance. Yes, in theory, they can do otherwise; why would they spend money and effort doing otherwise?

Providers not liable under DMCA still do this anyway. It's not worth fighting for anything at all, to them. They'd rather lose your $10/month of revenue than take a 0.01% chance of a $100,000 lawsuit. Try getting a false abuse report on almost any VPS provider.

Regardless if it's actually a part of dmca is beside the point. If the law didn't exist, this type of account loss wouldnt have happened.

Similar mal-interpretations/exaggerated response will happen with this new law too.

Look at Fosta/Sosta. Craigslist didn't have to take down the personal sections, but they did to totally remove any chance at liability.

DCMA responses are all about minimizing costs. It's much cheaper to just do it.

Private companies will respond to this in exactly the same way.

The keyword is "meaningful". The DMCA's counter-notice process is intimidating to use [1]. The DMCA as a whole is written in a way that effectively forces platforms to remove content targeted by unsubstantiated DMCA infringement notices [2]. (Tangentially, courts have read the DMCA's repeat infringer provision to apply to more parties than the text requires [2].)

YouTube's Content ID process, unfair as it is, is net fairer than the DMCA [3].

[1] https://cyberlaw.stanford.edu/blog/2017/01/dmca-counter-noti...

[2] https://www.rstreet.org/research/jawboning-in-plain-sight-th...

[3] https://www.youtube.com/watch?v=1Jwo5qc78QU - YouTube's copyright system isn't broken. The world's is.

I fully agree, but this is not exactly a principled community and it is controlled and managed by interests that have censorious authoritarian tendencies when it comes to discussion of meaningful things like this.

The bill does have a nullifying logical flaw in it though for purposes of defense, but I also don’t think that enforcement is really the point of the law. It is very much more likely that feigned intimidation and acquiescence are the intended purpose, i.e., making the currently still painless violation of rights the easiest route for entities to follow.

It has been the MO to undermine, infiltrate, and subvert the fundamental laws in the USA that restrict the government and authoritarians from infringing on the inalienable, God given rights of the people for many decades now.

Just the threat of a lawsuit will be enough to make most people give in. Hard to fight against deep pockets even when you are in the right.

This is one place where I hope the emerging LLM world helps protect us. If the automated filters actually use image or text models to decide whether it is frivolous or not seems like a tool we didn't previously have in our tool belt.

Has a new YC business started that is looking to handle DMCA requests or is this largely the domain of Vanta and others?

I'd never heard of this act [1], and the article frames it in a way that is not especially informative, though they have an excellent page on it here. [2] The law is being passed with complete unanimity in all houses (409-2 in the House, unanimous in the Senate), which is a rarity in modern times. Quoting the EFF as well as why they are opposed to it:

- "The takedown provision 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. The takedown provision also lacks critical safeguards against frivolous or bad-faith takedown requests. Lawful content—including satire, journalism, and political speech—could be wrongly censored."

So sexual or intimate themed memes which use realistic looking imagery may end up being able to be taken down. I also find myself disagreeing with the EFF here in spite of generally being a tremendous supporter of their work. In particular their main argument is that there are existing laws which work for this issue, without introducing new potentially abusable legislation:

- "If a deepfake is used for criminal purposes, then criminal laws will apply. If a deepfake is used to pressure someone to pay money to have it suppressed or destroyed, extortion laws would apply. For any situations in which deepfakes were used to harass, harassment laws apply. There is no need to make new, specific laws about deepfakes in either of these situations."

But I think on this issue one should not need to suffer some form of measurable loss or suffering to want intimate/sexual images removed from a site, let alone then having to go through the legal system and file a lawsuit to achieve such.

[1] - https://en.wikipedia.org/wiki/TAKE_IT_DOWN_Act

[2] - https://www.eff.org/deeplinks/2025/04/congress-passes-take-i...

Yeah, aren't US harassment laws really weak? It seems like if you could successfully sue over online harassment people would have already done it.

Recent Supreme Court case makes it a free for all to harass with thousands of messages, you only have to say you were not serious and claim it was free speech. https://www.cpr.org/2023/06/27/us-supreme-court-opinion-colo...

Unless you have the ability to get the Supreme Court to hear your personal case, that doesn't apply at the state level. You'd still be subject to whatever your state decides is the law.

It's called a higher court for a reason.

Well if recent experience has taught us anything, one can start to dox people and their families to influence their decisions in work and personal life like we have seen judges and prosecutors being treated, then bad actors can rely on this digital stochastic terrorism of the masses to intimidate. This article actually says states will have to adjust their laws to account for proving intent, in addition to the digital trail of evidence, so essentially someone has to admit to it, much like law enforcement in the USA cannot be compelled to present evidence of racial discrimination and is at the same time not required to keep stats on it, but the defense must prove racial discrimination in any case, so that as long as no one in law enforcement admits to it, it's a catch 22 where it cannot be proven. These are distinctions without difference from endorsing the behavior.

I agree. I generally support the EFF, but I disagree with them on this. I read through the bill and the language is very specific to revenge porn (although I’m not a lawyer). I think it would be very difficult for Trump or anyone else to abuse this law and use it for censorship.

I have friends who were the victim of revenge porn and I think this law would help them. I’m looking forward to this becoming a law.

Why is the second sentence of this article about Trump, when the bill is bipartisan and unanimous? A disproportionate share of the country's low-trust, anti-government types are Trump supporters. It's contrary to EFF's primary mission for it to shred their credibility with Trump voters by becoming a generic anti-Trump outfit.

Is it not relevant that Trump said he would use it to censor his critics? For being “anti-government types” it sure seems like they voted for dramatic and unprecedented authoritarian uses of the government.

The question isn’t whether it’s “relevant,” but whether that framing is the best approach for advancing EFF’s primary mission. I’d argue EFF’s primary mission is best served by avoiding provoking needless partisan fights on an issue where the EFF is going up against both parties.

> For being “anti-government types” it sure seems like they voted for dramatic and unprecedented authoritarian uses of the government.

I came across an excellent article on this, but I can’t find it. Basically, authoritarian populism is a response to the rise of the professional managerial class, and the ideological divergence of that class from the rest of the citizenry.

Most of the rules that affect your daily life don’t come from the President, or even high level cabinet officials, but career government officials and managers, as well as government-adjacent institutions such as universities and certain NGOs (the latter of which set rules through impact litigation). How can voters change how this distributed managerial class governs the country? They can elect someone like Trump, who is authoritarian, but whose authoritarianism is directed chiefly at the government itself and adjacent institutions.

It doesn’t behoove the EFF’s primary mission to alienate the large number of Trump voters who chafe at professional managerial control. Its primary mission is advanced by appealing both to the people who oppose policing porn on the internet, and also people who oppose policing so-called “hate speech” on the internet.

To make a comparison, look at Cato. Traditionally they’ve been more aligned with conservatives. But they have stuck to their guns on open borders and free trade, even though that’s made them hated by much of the more populist modern right.

Hm. If in practice it ends up being as over-broad as the eff seems to expect, might it get tossed on the grounds that it abridges freedom of speech?

I wouldn't bet the farm on that mattering, especially if it's a law that the powerful find "useful".

> might it get tossed on the grounds that it abridges freedom of speech?

yeah, when people got unlawfully sent to a prison in another country even though they were a US citizen law makers sprung into action (/s)

DMCA 1201 violates freedom of speech, but it's backed by corrupt beneficiaries, so it was never tossed. This one is comparable.

Attorney here! (Not your attorney, not legal advice.)

Why do you believe it runs afoul of the First Amendment?

https://www.wired.com/2000/08/court-to-address-decss-t-shirt...

The DeCSS case actually went to court (Bunner case), though it wasn’t about the T-shirt. It was a civil case based on trade secret law, not DMCA. The trial court assumed that sharing a trade secret without the permission of the secret’s owner is unlawful. That assumption wasn’t challenged.

That law is consistent with trade secret law in general. The First Amendment does not require trade secrets to lose all protection. If it did, you could freely disclose your own employer’s secrets without penalty.

Did Bunner work at the DVD Consortium? Can you freely discuss my employer's secrets without penalty?

> Can you freely discuss my employer's secrets without penalty?

Yes; in order for trade secrets to be protected, they have to be secret.

> Did Bunner work at the DVD Consortium?

I have no knowledge of this.

If you can, then Bunner should be able too.

If I can trade Amazon stocks based on where I think Amazon stocks are going to go, then Jeff Bezos should be able to too.

> Yes; in order for trade secrets to be protected, they have to be secret.

This is not true. See the Uniform Trade Secrets Act for the full text. People who know or have reason to know that the information is a secret are bound by the law, and the definition of "trade secret" does not require that the information never have been disclosed to an unauthorized person.

No, I cannot, if I know or have reason to know it is a trade secret. (The misconception that the law allows the equivalent of "secrets laundering" is still far too pervasive.)

The Uniform Trade Secrets Act (the law in most states) defines misappropriation as:

(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(ii) disclosure or use of a trade secret of another without express or implied consent by a person who

(A) used improper means to acquire knowledge of the trade secret; or

(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was

(I) derived from or through a person who had utilized improper means to acquire it;

(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(C) before a material change of his [or her] position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

It obviously doesn't, because the constitution is by definition whatever the supreme court says it is, yet by assumption the law in question hasn't been tossed. However, notice that the GP said "freedom of speech" and not the first amendment. Perhaps they understand the former to be more expansive than the latter.

Circumvention and circumvention tools are prohibited regardless of whether there is any underlying infringement, e.g. preventing an excerpt from being taken for the purpose of criticism. In general, fair use is required to square copyright with free speech, but circumvention for the purposes of fair use is prohibited.

More than that, it prohibits you from telling someone how to circumvent DRM, even if the purpose of doing so is just to, say, watch a movie they legally purchased on the device of your choice.

Banning secret numbers is dumb, but it's also the part of the law which is the most completely ineffective. Do you think you can find a copy of DeCSS on the internet? Of course you can.

The actual problem is the fair use problem, because it prevents you from e.g. creating a third party Netflix or Twitter client without the corporation's approval. Which in turn forces you to use their app and puts them in control of recommendations, keeps you within a walled garden instead of exposing you to other voices, etc. It's a mechanism to monopolize the marketplace of ideas.

Of course, Apple et al have turned this against the creators in order to extract their vig, which is a related problem.

Courts have never equated code with speech in such a way that it’s protected the same way as, say, political speech. People have been making the argument that “code is speech” (without understanding that not all speech is treated alike by our legal system) since DMCA was still being drafted 20+ years ago, but the legal system has never seen it that way.

This reply doesn't seem responsive to the issue. It's not just whether you can censor someone from publishing code -- that's a separate problem. It's whether the law can prohibit circumvention even when the copying is fair use -- or when the same technological protection measure is locking away works in the public domain.

We’re talking about freedom of speech here, so First Amendment law is on point. There’s no other mechanism in our legal system than the Constitution that would prevent DMCA, including its anti-circumvention provisions, from having full force and effect.

Similarly, absent some Constitutional protection, states can restrict who can purchase lock picks.

The Constitution doesn't seem to be very respected these days, in either the Executive nor Congress these days.

What about Bernstein v. United States?

> the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.

— https://en.wikipedia.org/wiki/Bernstein_v._United_States

Obviously it's impossible to cover all cases in a HN comment. I was perhaps a bit too broad when I suggested that the legal system doesn't treat code as speech. It does, sometimes; but even when it does, not all speech is treated alike for the purpose of legal analysis.

In the Bernstein cases, the Government was trying to squelch the author from publishing code that he personally wrote, that had scientific expressive value, and of which the Government required prepublication review, and the Ninth Circuit held:

"We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech."

The Court, as you can see, was trying very hard not to declare some sort of framework or test to be applied to future cases.

The Copyright Clause in the Constitution grants Congress the power to create copyright statutes, but does not itself create copyright. Federal copyright statutes defer to the First Amendment when they conflict. Copyright (a first-order speech restriction, where speech that infringes copyright is by definition unprotected by the First Amendment) is a bet: giving authors some extent of exclusive control over copying, distribution, and modification of their works will be better for freedom of speech than not giving any control. Fair use provides a flexible but imperfect safety valve for specific situations where the copyright bet might fail. Fair use is, by definition, not copyright infringement [1]. Therefore, I view the fair use statute (as well as the fair use doctrine prior to codification) as necessary for copyright law to avoid violating the First Amendment, and I believe that most restrictions on fair use rights are also restrictions on First Amendment rights.

The text of DMCA 1201 does not restrict fair uses [2]:

> (1)Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

However, in practice, DMCA 1201 has a plausible chilling effect on some fair uses and First Amendment protected speech. For example [4]:

> Opponents also say it creates serious chilling effects stifling legitimate First Amendment speech. For example, John Wiley & Sons changed their mind and decided not to publish a book by Andrew Huang about security flaws in the Xbox because of this law. After Huang tried to self-publish, his online store provider dropped support because of similar concerns. (The book is now being published by No Starch Press.)

Although the D.C. Appeals Court in Green v. Department of Justice found that the triennial rulemaking process for requesting exemptions to DMCA 1201 from the Library of Congress does not restrict freedom of speech [5], I emphatically disagree with the court in that regard because the Copyright Office summarizes the rulemaking process like this [6][7]:

> The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this ninth triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply for the next three years to persons who engage in certain noninfringing uses of specified classes of such works. This determination is based on the Register’s Recommendation.

Why would the Librarian of Congress need to provide exemptions when the "certain noninfringing uses" should already be exempted by the text of the DMCA 1201? That is, why would the granted exemptions include things that should already fall under fair use and the First Amendment in almost all cases, like "Audiovisual Works—Criticism and Comment—Filmmaking", "Audiovisual Works—Criticism, Comment, Teaching, or Scholarship— Universities and K–12 Educational Institutions", and "Literary Works—Text and Data Mining—Scholarly Research and Teaching" [6]? Why do advocacy groups have to affirmatively request and justify these 90%-fair-use exemptions which expire every three years? It sure seems to me like the writers of DMCA 1201, the Librarian of Congress, and someone at the Copyright Office observed or intuitively understood that DMCA 1201 would significantly restrict First Amendment protected speech in practice. Alternatively or in addition, said people observed or intuitively understood that fair use as an affirmative defense significantly fails to protect First Amendment protected speech in practice.

[1] https://www.law.cornell.edu/uscode/text/17/107

[2] https://www.law.cornell.edu/uscode/text/17/1201

[3] https://www.eff.org/deeplinks/2024/08/federal-appeals-court-...

[4] https://en.wikipedia.org/wiki/WIPO_Copyright_and_Performance...

[5] https://en.wikipedia.org/wiki/Green_v._Department_of_Justice...

[6] https://www.govinfo.gov/content/pkg/FR-2024-10-28/pdf/2024-2...

[7] https://www.copyright.gov/1201/2024/

Like most modern laws, if conservatives are able to bends it to theocratic authoritarian ends it will be upheld.

Indeed. But to be fair, if it’s framed as "protecting the vulnerable" — for example, as a tool to prevent hate speech — liberals would likely support it as well. Or you can always use the classic catch-all: "protecting children from online predators." If it grants politicians more power, it’s almost always useful to them. It's rare for them to believe the government should not have more authority. It’s really just a matter of framing it the right way.

Aaron Swartz showed us why we must fight back against these laws. He has spun so much in his grave this week, you'd think he's trying to invent a new power source.

I understand the horrors and so-called purpose this new act is trying to address, but the genie is out of the stable diffusion and successors' bottle.

Just this weekend, Trump signed an executive order declaring and celebrating World Intellectual Property Day [0], the kind of day IIPA and DMCA would have their lovechild conceived, while creepy uncles ACTA, TPP, TRIPS, and SOPA/PIPA lurked and maybe even watched in the attic.

The TAKE IT DOWN Act fits right in with this family reunion, handing those in power another tool to censor the internet under the guise of protecting "intimate images." Its vague net is so wide, it'll have even more platforms spooked into nuking fair use or satire just to dodge legal heat. It's no coincidence that censorship goes hand in hand with IP laws, control the content, monitor what people are submitting. This is exactly why people are building distributed tech like IPFS or ActivityPub and federated networks to keep information flowing, not locked behind government filters or takedown ultimatums.

Before you know it, it will be obscene to disagree with those in charge.

[0] https://www.whitehouse.gov/presidential-actions/2025/04/worl...

seems overly broad and can jail publishers of any content deemed inappropriate. eg melania nudes = el savadorian prison etc.

that video of donald sucking elon's toes probably counts.

20 years ago, I believed the expression "the internet interprets censorship as damage and routes around it". It's pretty clear we're far beyond technical solutions to political problems, now: whatever the internet might have been when it started out, it isn't any more - censorship is just too popular.

Tor still exists. Once ordinary porn can only be found on Tor, Tor will become a lot more popular and everyone will be able to access all kinds of censored things (from deepfake nudes, to pirated movies, to drug marketplaces, to AI that can tell you how to make a bomb). Of course, they'll just make Tor illegal then.

Depressing. We are in for a rough ride for the next few years, at least.

Apparently it was nearly unanimous, with the only Nay votes being Republicans: https://clerk.house.gov/Votes/2025104

Take It Down Act: A Flawed Attempt to Protect Victims That'll Lead to Censorship - https://news.ycombinator.com/item?id=43296886 - March 2025 (38 comments)

The Take It Down Act isn't a law, it's a weapon - https://news.ycombinator.com/item?id=43293573 - March 2025 (30 comments)

The "Take It Down" Act - https://news.ycombinator.com/item?id=43274656 - March 2025 (99 comments)

"...he would use the law to censor his critics." The most legitmate and most legally protected speech is political speech. This cannot possibly be legal.

People keep saying it can't be legal as if he cares about legality.

Other articles:

https://www.nytimes.com/2025/04/28/us/politics/house-revenge... (https://archive.ph/GTSM2)

https://www.cbsnews.com/news/house-take-it-down-act-vote-dee...

https://www.techdirt.com/2025/04/28/congress-moving-forward-...

they should've called it "shut it down". To go along with the meme.

Amy Klobuchar has been gunning for e2ee for years. In the context of her other bills, this is just the one that finally went through.

This bill has problems but it's not really about E2EE. It's targeting public distribution which isn't encrypted.

Enforcement would require access to content, encrypted or not. This is a test of the legality of offering e2ee services, explicitly or not.

E2e opens a bit of a problem for reporting the issue though, no? Only those that can decrypt messages can report them, and if the message isn't hosted on a server but merely routed through one in ciphertext, there's not much the company needs to do because they don't host the content anyway.

Exactly, the concern is that a judge could say e2ee thwarts proper compliance with the law and that it is therefore not legal for services with images and video.

Are we ignoring the fact that deepfakes, while despicable, are protected expression the same way that hand-drawn caricature cartoons that depict their subjects in an unflattering light are?

There is no line.

a cartoon is clearly fiction. videos depicting real, notable people in real contexts can't be immediately dismissed as such.

So what? Is satire that can't immediately be identified as such no longer allowed? Since when does an expression have to be "clearly fiction" to be protected speech?

"Your honor, all those counterfeit $20's I made are clearly protected under free speech."

Counterfeit money is intended to deceive and defraud. Producing artistic works of fiction is very clearly an act of expression, not an attempt at fraud.

they're called deepfakes for a reason.

If you are trying to commit fraud, there's already laws about that. It's not illegal to produce replica money btw, so long as you don't try to use it in commerce (there must be intent to deceive).

if i animate you saying "i fucked a goat", i will be considered deranged. if i make a deepfake of you saying "i fucked a goat", i could accuse you of bestiality, lie in court and maybe even get away with it.

edit: maybe i was a bit too rude. my memory was fresh with deepfakes used for scams, i get ads like that daily, then i remembered these: https://knowyourmeme.com/memes/ai-presidents-gaming-biden-an... - and i kinda get where you're coming from now. i still believe there should be _at least some kind of_ regulation (because the platforms themselves they won't remove anything as long as it keeps users on), not for opinions but for non-facts, but then that's another problem and it is: do we trust the enforcers to enforce properly?

Spreading damaging falsehoods intentionally and knowingly is already legally actionable. Lying in court is already a crime.

We don’t need additional laws criminalizing the production of content.

What do you do if it ruins your life on the way to getting your day in court? If you get fired, your employer won't be forced to rehire you, and they are likely protected from any retaliation against you because they were acting in good faith. You aren't going to sue in civil court and get financial restitution from an underage kid or someone with no assets worth seizing. You still lose in either case.

If a deepfake on the internet can get you fired, you need a better employer, or a better contract with your employer, because the actions of third parties outside of your control should not affect your employment relationship. More importantly, your employer should recognize and understand that fact.

That's a consequence of living in a free society. The law does not get involved until after the fact anyway, so what protections would you be seeking? Laws don't stop people from taking action, they only provide consequences for those actions.

The state of California agrees with you, but many other US states explicitly criminalize drawn NSFW depictions...

How is that not a 1A violation?

The intolerant will always take advantage of the tolerant and force their intolerance at the first chance given.

Here's the text.

https://www.congress.gov/bill/119th-congress/senate-bill/146...

I can't identify where EFFs concerns are coming from. There's a specific limitation of liability for online platforms and the entire process appears to be complaint driven and requires quite a bit of evidence from the complaintant.

What actually concerns me in this bill?

> (B) INVOLVING MINORS.—Except as provided in subparagraph (C), it shall be unlawful for any person, in interstate or foreign commerce, to use an interactive computer service to knowingly publish a digital forgery of an identifiable individual who is a minor with intent to—

> “(i) abuse, humiliate, harass, or degrade the minor; or

> “(ii) arouse or gratify the sexual desire of any person.

> “(C) EXCEPTIONS.—Subparagraphs (A) and (B) shall not apply to—

> “(i) a lawfully authorized investigative, protective, or intelligence activity of—

> “(I) a law enforcement agency of the United States, a State, or a political subdivision of a State; or

> “(II) an intelligence agency of the United States;

Wut? Why do you need this? Are we the baddies?

Sting operation maybe?

Sounds like something meant to allow the vice squad to post "selfies" when they're pretending to be kids?

The limitation of liability is itself concerning because it means platforms won't care about fake takedowns. This law doesn't even have the counter notice process that DMCA has. You say take down X, they take it down, they're not liable. There's no appeal process that I see.

It applies to a narrow category of providers.

> IN GENERAL.—The term “covered platform” means a website, online service, online application, or mobile application—

> (i) that serves the public; and

> (ii) (I) that primarily provides a forum for user-generated content, including messages, videos, images, games, and audio files; or

> (II) for which it is in the regular course of trade or business of the website, online service, online application, or mobile application to publish, curate, host, or make available content of nonconsensual intimate visual depictions.

If you publish the content on your own website or on certain public websites you don't even have to respond to these requests. You do; however, open yourself to criminal and civil liability for publicly hosting any nonconseual visual images. Your provider is also excluded from service and cannot legally be compelled to participate in their removal.

This sounds like any online forum of any kind, commercial or hobbyist, which allows uploading images. I guess you could call that a narrow category, but I wouldn't.

We need it so I don't file a takedown request against what you just posted because I disagree with it.

The scenarios envisioned in the way the bill is written don't actually apply sanely to how the Internet works. Anyone can send any number of (valid or not) reports to any service provider. That service provider then has to somehow decide if every one of those reports fits the definitions of an intimate visual depiction, and, if so, take it down. There's nothing preventing someone from making fraudulent claims, nor any punishment for doing so. The requirements in Section (3)(a)(1)(B) are trivial to automate ("Hi, my name is So-and-so. The image at URL is an intimate image of me posted without my consent. For reference, URL is a picture of me that confirms that URL contains a picture of me. My email address is example@invalid.com." satisfies the requirements of that section, at a glance).

The limitation on liability is only saying they're not responsible for the consequences of taking something down, not for the consequences of leaving something up.

That, plus the FTC being able to sue any company for the inevitable false negatives that will happen means that the only reasonable response to takedown requests is to be extremely cautious about rejecting them. It'll inevitably be abused for spurious takedowns way more than the DMCA already is.

> fits the definitions of an intimate visual depiction,

Hardly seems difficult. I think a lot of services have TOSes which cover this type of content. The text of the bill also plainly defines what is covered.

> are trivial to automate

And removal is trivial to automate. I'm pretty sure providers already have systems which cover this case. Those that don't likely don't allow posting of pornographic material whether it's consensual or not.

> they're not responsible for the consequences of taking something down

So the market for "intimate depictions" got a little harder to participate in. This is a strange hill to fight over.

> It'll inevitably be abused for spurious takedowns

Of pornographic content. The law is pretty well confined to "visual depictions." I can see your argument on it's technical merits I just can't rationalize it into the real world other than for some absurdly narrow cases.

How does your trivial removal automation distinguish between 'intimate depictions' and 'political imagery I dislike'?

The whole point of this is discussion is that this is going to be used to censor everything, not just 'intimate visual depictions'.

> How does your trivial removal automation distinguish between 'intimate depictions' and 'political imagery I dislike'?

It doesn't; however, you would immediately have a civil case against the person and/or their representative for their false claim. That's not spelled out in the bill but it should be obvious.

> The whole point of this is discussion is that this is going to be used to censor everything

That's the claim. You may accept it without objection. I simply do not. Now I'm offering a slightly modified discussion. Is that alright?

> not just 'intimate visual depictions'.

I'm sure you would agree that any automation would obviously only be able to challenge images. This does create a vulnerability to be sure, but I do not agree that it automatically creates the wholesale censorship of political speech that you or the EFF envisions here.

It also makes efforts at being scoped only to sites which rely on user generated content effectively limiting it to social media platforms and certain types of adult content websites. Due to their nature it's already likely that these social media platforms do _not_ allow adult content on their websites and have well developed mechanisms to handle this precise problem.

The bill could be refined for civil liberties sake; however, in it's current state, I fail to see the extreme danger of it.

>however, you would immediately have a civil case against the person and/or their representative for their false claim. That's not spelled out in the bill but it should be obvious.

Wow. Not sure if this is ludicrously bad faith or just ludicrously naive/ignorant/unthinking but it's ludicrous either way. Plenty enough to nullify every other thing you attempt to say on the topic.

> It doesn't; however, you would immediately have a civil case against the person and/or their representative for their false claim.

Great. So a motivated bad actor can send out 10,000,000 bogus takedowns for images promoting political positions and people they disagree with, and they have to be taken down immediately, and then all 10 million people affected have to individually figure out who the hell actually submitted the takedowns, and have enough money for lawyers, and enough time to engage in a civil suit, and in the end they might get money, if they can somehow prove that taking down those specific images damaged them personally, rather than just a cause they believe in, but will they get the images restored?

This just smacks of obliviousness and being woefully out of touch, even before we get to

> That's not spelled out in the bill but it should be obvious.

...which almost makes it sound like this whole thing is just an elaborate troll.

> however, you would immediately have a civil case against the person and/or their representative for their false claim.

Look how well that's worked against DMCA and Youtube copyright strike abuse. In the case that the posts that are being taken down are not commercial, being able to prove damages means that the effectiveness of such a deterrent are minimal. The act could have put in some sort of disincentive against fraudulent reports, or even provided for a way to find the reason your stuff was taken down, but notably does not do so.

> That, plus the FTC being able to sue any company for the inevitable false negatives that will happen means that the only reasonable response to takedown requests is to be extremely cautious about rejecting them.

... or to finally hire enough moderators to make competent judgements to avoid getting a counter lawsuit for restricting free speech.

The safe harbor provision ensures that they don't have to worry about getting sued for restricting free speech.

The article says the takedown section is much broader than other sections.

What’s stopping someone from taking down this post of yours?

Assume they are a serial liar. Or that they are a political opponent with zero shame.

A minute of silence for people who thought cancel culture lost the elections.

Fictional things can't lose elections, silly.

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