The Take It Down Act, a bill aimed at combating nonconsensual intimate imagery (NCII), including AI-generated content, has gained significant support in Congress. However, its passage may not necessarily lead to the protection of victims, but rather become a weapon for the Trump administration to selectively enforce against its political enemies.

The bill, sponsored by Ted Cruz (R-TX) and Amy Klobuchar (D-MN), criminalizes the publication or disclosure of real and simulated "nonconsensual intimate physical depictions" of an identifiable person. It tasks the Federal Trade Commission (FTC) with ensuring web platforms establish a process for removing these depictions within 48 hours, at the risk of violating unfair trade practices law. While the bill's intentions are noble, its implementation is likely to be flawed, given the current administration's track record of abusing laws for political gain.

The Trump administration has consistently demonstrated a disregard for the rule of law, using legal processes as bargaining chips or ammunition to attack political enemies. This has led to a constitutional crisis, where Congress can no longer claim that what it passes are laws, but rather weapons for the administration to wield. The Take It Down Act, in this context, becomes a tool for the administration to selectively enforce, exempting those who earn Trump's favor while targeting others.

The bill's provisions, while well-intentioned, are likely to be misused by private bad actors, who can abuse the notice-and-takedown system to remove lawful speech. Moreover, the law's platform provisions could be worse than useless, as government-mandated takedown systems are easily abused. Conservatives have already signaled an interest in undercutting supposedly "liberal" platforms, such as Wikipedia, which could be targeted by the FTC if trolls start spamming it with deepfakes.

The Take It Down Act also raises concerns about liability for end-to-end encryption, which could incentivize companies like Apple to remove data protection features. In a presidency that has shown blatant contempt for data privacy, the danger is even more pressing. Furthermore, the administration's track record of using laws as leverage, rather than applying them fairly, means that even if the bill passes, its enforcement will be arbitrary and politically motivated.

In a normal world, the Take It Down Act would be a positive step towards solving the real problem of NCII. However, in the current political climate, it is unlikely to make a significant difference, and may even be used as a tool for the administration to further its political agenda. As civil libertarians often warn, regulations must be viewed through the perspective of the worst person interpreting them, and in this case, that person is the Trump administration.

For those who want tech platforms to take a stronger stance on NCII, state-level lawmakers still seem invested in the process of governance, and soft power – protests, boycotts, exposés – can push companies to act. However, until Congress decides to become a real branch of government again, the Take It Down Act will remain a flawed and potentially dangerous piece of legislation.