Guest author: Sam Bourgeois, Make it Secure, LLC
The Take It Down Act (S. 4569) proposes strict measures to curb the spread of nonconsensual intimate images and deepfake forgeries. While well-intended, its enforcement faces significant hurdles. From law enforcement's ability to handle these cases to the burden placed on platforms and the challenge of deepfake detection, the bill presents practical and legal conflicts—especially regarding Section 230 protections.
We can’t ignore stories like Elliston Berry’s, though! This is an issue that puts our young people at risk daily. The mental trauma, the social impacts, and digital footprint left behind can be Earth shattering for teens in particular.
Jurisdictional and Enforcement Issues: Law Enforcement Capacity and Readiness
One of the biggest challenges in enforcing the Take It Down Act is law enforcement’s limited capacity to investigate and prosecute violations effectively.
Resource Constraints: Detecting, investigating, and proving cases of nonconsensual intimate image dissemination requires specialized training and digital forensic tools that many law enforcement agencies lack. Most local police departments do not have dedicated cybercrime units, meaning cases may go uninvestigated due to limited resources.
Jurisdictional Complexity: Many offenders operate outside U.S. jurisdiction, making it difficult for domestic agencies to take action. Even if U.S. authorities identify perpetrators abroad, cooperation with foreign governments can be slow or nonexistent.
Volume of Reports: With millions of images uploaded daily, platforms and law enforcement agencies could be overwhelmed with removal requests. Processing each claim within 48 hours (as the bill mandates for platforms) will be difficult if law enforcement is already struggling to handle child exploitation cases, cyber harassment, and other online crimes.
Without dedicated funding, training, and international cooperation agreements, enforcement of this law may be limited to high-profile cases, leaving most victims without recourse.
Compliance and Burden on Platforms: Will This Be a Manual Review Process?
The bill requires online platforms to remove nonconsensual intimate images within 48 hours. However, enforcing this requirement places a significant burden on companies—especially when it comes to manual content review.
Automated vs. Manual Review: While AI tools can detect nudity, they cannot determine consent—forcing platforms to rely on manual moderation. This means human reviewers must analyze each takedown request, slowing down the process and increasing operational costs.
Scalability Issues: Small platforms with fewer resources will be completely overwhelmed. Larger companies like Google and Meta may afford dedicated teams, but smaller startups could face lawsuits or shutdown due to compliance failures.
I don’t want to recommend more government oversight, but perhaps this could be a function of an existing agency like the FBI. A potential solution would be the establishment of a centralized government-backed system that verifies takedown requests before passing them to platforms, reducing their burden.
Challenges in Identifying and Removing Deepfakes
Deepfake technology moves fast, making it increasingly difficult to distinguish real images from AI-generated ones. The bill includes provisions to criminalize “digital forgeries”, but enforcement relies completely on forensic verification.
Limitations of Current Forensic Tools: While digital forensics tools can detect some deepfakes through pixel inconsistencies, metadata analysis, and AI pattern recognition, they are not 100% accurate.
Forgeries Will Become More Convincing: Advanced deepfake generators are getting better at mimicking lighting, skin textures, and facial expressions, making detection even harder. Future versions of deepfake technology may completely bypass existing forensic tests.
Legal Admissibility Issues: If a digital forensics tool flags an image as a deepfake, is that evidence legally admissible in court? The lack of legal precedent in deepfake prosecution creates uncertainty for law enforcement and victims seeking justice.
To combat this, we should invest in AI detection tools, train more forensic experts, and possibly set up a national repository of known deepfake signatures for better tracking. Our friends at Breacher.ai are doing just that. They have worked for years to build out the tools and processes to identify deepfakes and advise businesses on how to reduce risks. They also provide training and testing services to assure your organization is ready to meet the challenge head-on.
Section 230 Conflicts: Should It Be Changed or Repealed?
A major conflict within the Take It Down Act is how it interacts with Section 230 of the Communications Decency Act, which protects platforms from liability for user-generated content.
Why Section 230 Matters: Under current law, platforms are not legally responsible for what users post—only for what they fail to remove after notification. This protection allows social media sites, forums, and blogs to function without excessive litigation. This has been a barrier to progress for years and continues to enable abuse online, even though no one could’ve predicted it at the time of writing.
Why the Take It Down Act Conflicts: The bill introduces strict takedown requirements, making platforms legally responsible for removing nonconsensual intimate images within 48 hours. This makes them libel, contradicting Section 230’s original purpose.
So, should Section 230 Be Repealed or Modified?
Repealing Section 230 entirely would cripple the internet, as platforms would have to pre-screen all content—something technically and financially impossible. In my opinion a better solution would be to amend Section 230 to:
Hold platforms accountable only if they fail to act on verified takedown requests.
Provide clear legal standards on what qualifies as a nonconsensual deepfake.
Offer safe harbor protections for platforms that make a good-faith effort to remove illegal content.
The issue remains: deepfake, deep trauma and we must do what we can to protect every student.
What do you think? Let us know in the comments!
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