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discover more at arm.com/Discover. Today I'm

1:44

talking to Virgin Policy Editor Addie

1:46

Robertson about a bill called the

1:48

Take It Down Act, which is

1:50

one of a long line of

1:52

bills that would make it illegal

1:54

to distribute non-consensual intimate imagery, or

1:56

NCII. That's a broad term that

1:58

encompasses what people used to call revenge

2:01

porn, but which now includes things like

2:03

deep fake news. The bill was sponsored

2:05

by Democrat Amy Klobuchar and Republican Ted

2:07

Cruz, and it just passed the Senate.

2:09

It would create criminal penalties for people

2:11

who share NCII, including AI-generated imagery, and

2:14

also force platforms to take that imagery

2:16

down within 48 hours of a report

2:18

or face financial penalties. NCII is a

2:20

real and devastating problem on the internet.

2:22

It ruins a lot of people's lives,

2:24

and AI is just making it worse.

2:26

There are a lot of good reasons

2:29

you'd want to pass a bill like

2:31

this, but Addie just wrote a long

2:33

piece arguing against it, saying that giving

2:35

the Trump administration new powers over speech

2:37

in this way would be a mistake.

2:39

Specifically, she wrote that passing the ticket

2:41

down act would be handing Trump a

2:43

weapon with which to attack speech and

2:46

speech platforms he doesn't like. At a

2:48

high level, Addie's argument is that Trump

2:50

is much more likely to wield a

2:52

law like this against his enemies, which

2:54

means pretty much anyone he doesn't personally

2:56

like or agree with, and much more

2:58

likely to shield from its consequences the

3:01

people and companies he considers friends. And

3:03

we know who his friends are. It's

3:05

Elon Musk, who now works as part

3:07

of the Trump administration, while at the

3:09

same time running the ex-social network, which

3:11

is full of NCII. Now, Addie and

3:13

I have been covering online speech and

3:16

talking about how it works and how

3:18

it's regulated for about as long as

3:20

the verge has existed. And she and

3:22

I have gone back and forth about

3:24

where the line should be drawn and

3:26

who should draw them about as many

3:28

times as possible as two people can

3:30

over the years. But our conversation and

3:33

our coverage has always presupposed a stable,

3:35

rational system of policymaking that's based on

3:37

the equal application of law. Here in

3:39

2025, Trump has made it clear that

3:41

he can and will selectively enforce the

3:43

law, and that changes everything. Once you

3:45

break the equal application of law, you

3:48

break a lot of things, and there

3:50

is just no evidence that Trump is

3:52

interested in the equal application of law.

3:54

You'll hear us really wrestle with that

3:56

here. The problem doesn't go away just

3:58

because the solution... are getting worse, or

4:00

that the people entrusted with enforcing the

4:03

law are getting more chaotic. So in

4:05

this episode, adding I really get into

4:07

the details of the Take-A-Down Act,

4:09

how it might be weaponized, and

4:11

why ultimately we can't trust anything

4:13

the Trump administration says about protecting

4:15

the victims of abuse. Okay, the Take-A-Down

4:17

Act, and its collision course with

4:20

our constitutional crisis. Here we go. Eddie

4:41

Robertson, welcome to Dakota. Hey,

4:43

let's talk about the Take It

4:45

Down Act. This is a bill

4:48

that would solve the problem of

4:50

AI-generated deep fakes of what people

4:52

had been calling revenge porn. Now

4:54

we call it non-consensual intimate imagery,

4:57

which I think is a

4:59

much better name. What is the Take

5:01

It Down Act? The Take It Down

5:03

Act is one of several bills

5:05

that have been, as you said,

5:08

meant to address AI replicas and

5:10

non-consensual intimate imagery. It sort of

5:12

has two parts. The first part

5:14

is that it's criminalizing NCAAI, including

5:17

digital forgeries. And this is a

5:19

part that is important and has

5:21

gotten somewhat less discussion because it

5:23

is not the most controversial part.

5:26

The controversial part is the taking

5:28

it down part, which is that

5:30

if it's past, then Web platforms

5:32

that focus on user-generated content are

5:34

going to have to create a

5:37

system by which people can report

5:39

intimate visual depictions in the bill's

5:41

language and those depictions have to

5:43

be taken down within 48 hours

5:45

at the risk of the FTC

5:47

stepping in and imposing penalties. So this

5:49

is a bill that's kind of landed

5:51

in the Federal Trade Commission? Yes, well

5:53

the criminal provisions of it get

5:55

just enforced through sort of criminal

5:58

enforcement channels, but the FTC... is

6:00

the one that's responsible for enforcing

6:02

the part against tech platforms. Is that

6:04

new? That feels like a new

6:06

power for the Federal Trade Commission. You

6:08

and I have covered a lot

6:10

of tech platform laws and policy ideas.

6:12

The notion that it's the FTC

6:15

that's going to show up and find

6:17

meta if they don't comply with

6:19

some content moderation rule, that seems new.

6:21

Can't say whether it is completely

6:23

new, but it does seem like kind

6:25

of a novel interpretation it's basically

6:27

Unfair Competition Act law. And so they're

6:29

going to define that, I guess,

6:32

to include NCII, which as you mentioned,

6:34

it's a law that can stretch

6:36

pretty far, but it is a little

6:38

unusual, I think. I want to

6:40

come back to that because the question

6:42

of who gets to enforce this

6:44

law and who might gain leverage over

6:46

the platforms is very important to

6:49

your overall thesis, which is this law

6:51

in this administration is just a

6:53

cudgel. It might solve the problem or

6:55

it might help us in a

6:57

policy making framework think about ways to

6:59

solve the problem, but the reality

7:01

of it is that you're going to

7:03

give a pretty gangster -like Trump administration

7:06

just something to beat platforms over

7:08

the head so they comply with other

7:10

speech ideas. So I want to

7:12

come back to the FTC of it

7:14

because that seems important to me,

7:16

but I just want to stay in

7:18

the sort of practical part of

7:20

the problem. Who gets to decide if

7:23

any of this imagery is inappropriate

7:25

or intimate? Is there a definition we

7:27

get to use? Is it just, here's

7:30

a picture of Taylor Swift, she obviously

7:32

didn't consent to it, she gets to

7:34

say take it down? The interesting thing

7:37

that the Electronic Frontier Foundation and some

7:39

other people have pointed out is that

7:41

there are, it seems like different standards

7:43

for what happens if something is counted

7:45

as criminal versus what has to be

7:47

taken down through these systems. Everything is

7:49

based on the idea that there's a

7:52

definition in the law of an intimate

7:54

visual depiction, which is sort of what

7:56

you might expect. It's someone who is

7:58

engaged in sexual activity, there's nudity, whatever.

8:00

variety of sort of a constellation of things

8:02

there. The part of it that criminalizes

8:04

it talks about these other sets of

8:07

conditions that have to be

8:09

met. So for instance, there's a carve

8:11

out if something is of public interest

8:13

and you have to meet these conditions

8:16

that go beyond the idea that it's

8:18

just a sexual image of someone. The

8:20

take it down part of it, at

8:22

least in the EFF and some other

8:25

folks interpretation, doesn't actually have those limits

8:27

that it really is just is something

8:29

an intimate or sexualized depiction of someone?

8:32

Okay, you have to take it down.

8:34

Which, funnily enough, there is a

8:36

Trump-related example of recently, which is

8:39

that someone in the federal government

8:41

was protesting Doge by creating an

8:43

AI-generated video of Trump licking Elon

8:46

Musk's feet. And there was debate

8:48

on Blue Sky in particular about

8:51

whether this could constitute NCII that

8:53

should be taken down. Blue Sky

8:55

took it down, but then didn't

8:58

because it's in this place where

9:00

yes, it's a sexualized image, it's

9:03

also a sexualized image that is

9:05

not only of a public figure in

9:07

a way that is specifically related to some

9:09

news, but that is framed in the

9:11

context of it's not just that this

9:14

image exists, it's that it... is specifically

9:16

part of a news story about government

9:18

employees doing something that is incredibly noteworthy.

9:20

So you could probably come down on

9:23

either side of whether that is inappropriate

9:25

or not, but it's clearly a situation

9:27

that's unique and that goes just far

9:30

beyond the idea that this is a

9:32

sexualized image of someone. And it doesn't

9:34

seem like the Take It Down Act

9:36

really accounts for that. The Blue Sky example

9:39

is particularly interesting because the

9:41

video that Blue Sky took down

9:43

was not the video itself. It was a

9:45

video of the monitors at the

9:47

Office of Housing and Urban Development,

9:49

where employees had hacked all the

9:51

displays and started playing this video.

9:53

So the video itself was newsworthy.

9:55

And so that is just a

9:58

layer of complexity and complication. and

10:00

nuance that I think is not

10:02

in the law as we see

10:04

it, it's hard for the platforms

10:06

to make determinations, and then you

10:08

have our current set of platforms

10:10

which do not seem well suited

10:12

to making nuanced moderation decisions in

10:14

the current administration, which is just

10:16

sort of constitutionally allergic to nuance.

10:18

How do you think that all

10:20

plays together? Is it just... We

10:22

know it when we see it,

10:24

which is like the classic line

10:26

people use about sexualized imagery. Is

10:28

it we just get to decide?

10:30

Is it famous people are going

10:32

to get protected and regular people

10:34

are going to get washed away

10:36

in the fray? We've just been

10:39

spending decades trying to work this

10:41

out as a legal framework and

10:43

a moderation framework even before AI.

10:45

There were issues where, say, Facebook

10:47

decides, all right, there's no nudity

10:49

on Facebook, but all right, there's

10:51

this, the very famous napalm girl

10:53

photograph from the Vietnam War, so

10:55

does that get taken down? There's

10:57

just this incredibly complicated dance and

10:59

all these incredibly complicated questions about,

11:01

yes, should public figures get more

11:03

protection, less protection? It's something I

11:05

don't think... I have a clear

11:07

answer for and I don't think

11:09

anyone does. It kind of boils

11:11

down to you, you know it

11:13

when you see it. There are

11:15

many situations where it is just

11:17

clearly unambiguous. There are a bunch

11:19

of websites and there are a

11:21

bunch of services whose deal is

11:23

allowing people to make non-consensual intimate

11:25

images or post them specifically because

11:27

they are sexualized images of women

11:29

that we hate. And they are

11:31

women that we personally know and

11:33

we want to humiliate. There's not

11:36

any nuance about whether there's value

11:38

to that it's bad. are situations

11:40

where I think you could enforce

11:42

a law that says this is

11:44

bad and we don't have to

11:46

worry about that. I think that

11:48

the problem with the Take It

11:50

Down Act is that it includes

11:52

really none of in the takedown

11:54

provisions even the focus of that.

11:56

That it really is just very

11:58

broad net that even if we

12:00

weren't under the Trump administration be

12:02

causing all of these problems and

12:04

questions about you're just building this

12:06

system that's very open for abuse.

12:08

And we especially have an example

12:10

of that working already, which is

12:12

the DMCA. So copyright, if you're

12:14

listening to this, have heard of

12:16

copy striking. It's very obvious that

12:18

when you create something that is,

12:20

while not legally mandated, really required

12:22

to get safe harbor protection under

12:24

copyright law, then you're making this

12:26

big, very blunt instrument and you

12:28

have to weigh the potential good that

12:31

it can do against the harm that

12:33

clearly is just undeniably

12:35

happening with something like the DMCA.

12:37

You know, it's interesting about the

12:39

copyright example is that it is

12:41

such a powerful weapon on the

12:44

platforms that in the creator economy

12:46

there exists an entire parallel set of

12:48

norms that culture has developed about how

12:50

nuclear it is to issue a copy

12:52

strike. You see it play out in

12:55

all these ways that I don't think

12:57

the framers of the DMCA could ever

12:59

would have ever contemplated. I don't think

13:01

you can do that with non-consensual

13:04

intimate imagery. I don't think you get

13:06

to have a big normative argument with

13:08

a person who feels wrong because there's

13:10

a sexualized AI depiction of them. This

13:13

seems even worse in that way. Yeah,

13:15

I think there are a couple of unintended

13:17

consequences, which is that part of the

13:19

reason why it's such a big deal

13:21

in... Copyright is that the law just

13:23

gets used for things that it was

13:25

never meant to be used for. Like

13:27

it's not just that someone says this

13:29

is copyright infringement, there is an entire

13:31

extortion industry that is just

13:33

based around the idea that you'll be

13:36

fraudulently accused of copyright infringement. And if

13:38

you don't pay up, then they're going

13:40

to use this blunt instrument against you.

13:42

So it first of all erodes the

13:44

idea that the law itself is worthwhile

13:46

and is addressing that thing. And I

13:49

think that while this should not stop

13:51

people from trying to stop NCII, it

13:53

also creates the scenario where if this

13:55

law and this blunt instrument gets used

13:57

in a way that is not meant to

13:59

actually address the problem, it sort of

14:02

devalues the problem that you suddenly

14:04

get to this point where I

14:06

think if it's like copyright, people

14:08

stop taking the idea of NCII

14:10

accusations seriously because you look at

14:12

this, oh well it's just clearly

14:14

this person trying to cause drama

14:16

in the community or take something

14:18

down for reasons that have nothing

14:20

to do with NCII. And so

14:22

the actual conversation about people who

14:24

are being hurt here can get

14:26

lost if you create this system

14:28

that doesn't really target it well.

14:30

I can guarantee you, there's someone

14:32

who's listening to this right now

14:34

who is saying, this is so

14:36

hard, why even try? And I

14:38

get that. There's a nihilism, I

14:40

think, to the current moment in

14:42

policy making, there's a nihilism in

14:44

the reaction to the Trump administration.

14:46

There's a kind of nihilism embedded

14:48

in the Trump approach to policy

14:50

that says, this is too hard.

14:52

Why even try? People will just

14:54

sort of get tough. But it's

14:57

not actually the case that it's

14:59

too hard, right. to the responsibilities

15:01

of platforms to whether or not

15:03

it should be left up or

15:05

taken down? What does this look

15:07

like across the states right now?

15:09

At this point, I think 48

15:11

states have some kind of NCII

15:13

law. Mostly the laws tend to

15:15

focus on the people who are

15:17

creating it. I don't think there

15:19

are that many. laws that go

15:21

after the larger tech platforms, which

15:23

I think is just the point

15:25

at which it goes from here's

15:27

a person committing a crime, to

15:29

here is this absolutely massive system

15:31

that you have to navigate in

15:33

a way that creates these huge

15:35

risks. And recently, like you said,

15:37

we've sort of been moving toward

15:39

deep fakes, I think around 14

15:41

states currently have mostly just laws

15:43

that add digital replicas to this

15:45

kind of existing NCII framework. A

15:47

lot of the problem with defects

15:49

so far, though, is that there

15:51

are all these other issues that

15:53

get wrapped up into it. So

15:55

there's NCII, but then there are

15:57

also attempts to make laws that

16:00

will fight, say, AI-generated imagery in

16:02

election. information, which is obviously an

16:04

issue, but it is a somewhat

16:06

different issue that raises a whole

16:08

bunch of different constitutional questions and

16:10

harm questions. There's issues that are

16:12

basically the equivalent of copyright infringement.

16:14

There's the Elvis Act, where the

16:16

goal isn't really NCII. It's we

16:18

have to stop artists from getting

16:20

their livelihoods appropriated, which again, serious

16:22

problem, completely different like threat matrix.

16:24

So I think that the whole

16:26

AI discussion is still really confused.

16:28

We spent last year talking about

16:30

the Kids Online Safety Act that

16:32

had a lot of ideas in

16:34

it. It went nowhere. It appears

16:36

to be stalled out completely now.

16:38

But Malania Trump is basically advocating

16:40

for, hey, we should do the

16:42

take-a-down act, like I'm famous. There

16:44

are nudes of me on the

16:46

internet. I don't want there to

16:48

be AI-generated nc-i. What's here's a

16:50

bill like here's just a solution.

16:52

Let's have it and that feels

16:54

like it's very narrow But also

16:56

just ill-considered There have been several

16:58

bills that try to address this

17:01

and some of them have been

17:03

a lot more limited and a

17:05

lot less controversial as a result.

17:07

So the Defiance Act, which passed,

17:09

I believe, out of the Senate

17:11

last year, but didn't end up

17:13

ultimately passing, is something that adds

17:15

AI-generated imagery essentially to existing civil

17:17

penalties for NCII. So back in

17:19

2022, the Violence Against Women Act

17:21

was amended to include civil action,

17:23

which again means like you can

17:25

sue someone for NCII. And the

17:27

Defiance Act kind of bolts again

17:29

as many places have done AI

17:31

generated imagery into that. It doesn't

17:33

include the kind of take it

17:35

down provisions that have proven really

17:37

controversial. There is also the Shield

17:39

Act, which has been reintroduced, which

17:41

introduces criminal penalties. I think that

17:43

there are a bunch of efforts

17:45

to individually criminalize or create civil

17:47

penalties against the creators of this

17:49

thing. And I think that there

17:51

are then these huge problems when

17:53

you try to expand that to

17:55

we have to make anyone on

17:57

the internet who is unknowingly hosting

17:59

it, remove it. And that's the

18:02

shift to the platform, right? That's

18:04

saying, okay, Facebook and YouTube and

18:06

TikTok are now going to be

18:08

responsible for what's on their platforms.

18:10

I just, one more distinction I

18:12

want to make about the various

18:14

state approaches to this in the

18:16

pre AI era. is that they

18:18

were often rooted in copyright law,

18:20

right? Like there would be some

18:22

non-consensual intimate imagery or, you know,

18:24

people had taken photos and then

18:26

one partner would have them and

18:28

distribute them eventually and there's a

18:30

copyright interest, right? You'd like made

18:32

the photo together and that provided

18:34

the basis for some of this

18:36

imagery to come down. I'm not

18:38

sure where that comes from with

18:40

the AI generated stuff. So are

18:42

we just in a totally new

18:44

realm of where the authority to

18:46

take things down comes from? Copyright

18:48

even for non-simulated NCII was a

18:50

nightmare. So the problem with copyright

18:52

is that you have to have

18:54

created the image. And so it

18:56

applied to selfies. If you took

18:58

a picture of yourself and you

19:00

send it to someone else and

19:03

it spread, okay, you own that

19:05

photo. The problem is a bunch

19:07

of NCII, isn't that a bunch

19:09

of it. Even if it is

19:11

something that was consensually taken, it

19:13

wasn't taken by you. So you

19:15

don't own the photograph. It's something

19:17

that a partner took a partner

19:19

took. And so copyright. Either it

19:21

means it doesn't really apply to

19:23

those things, or it means you're

19:25

creating this really weird copyright exception

19:27

that causes all of these other

19:29

problems. Like say there have been,

19:31

this is not related to NCII,

19:33

but lawsuits around whether a paparazzi

19:35

photo can be then claimed by

19:37

the person who was in the

19:39

photo, which just causes all these

19:41

other problems. Yeah, the reason I

19:43

asked that question is the idea

19:45

that the government can look at

19:47

a picture. and declare that it's

19:49

illegal or should be taken down

19:51

is very complicated. It requires some

19:53

framework, it requires some rigor, it

19:55

requires some due process that people

19:57

can understand and argue against. And

19:59

then... making that bigger so that

20:01

the responsibility also lies with the

20:04

platforms like YouTube or TikTok or

20:06

Instagram seems even more complicated. And

20:08

I think that's where you get to the

20:10

Take It Down Act, because that's the big

20:12

step in the Take It Down Act, right?

20:14

Saying, okay, the Federal Trade Commission is going

20:16

to be able to find Instagram if this

20:18

imagery appears on Instagram and Instagram

20:21

doesn't take it down immediately.

20:23

And that seems like a lot of leverage

20:25

for our government to get over these

20:27

platforms. The 48 hours the take it

20:29

down immediately is also a problem

20:31

there because if say you sue

20:33

someone and you go through an

20:35

entire case about whether something is

20:37

NCII at the end of that

20:39

you have say a court pretty

20:41

clearly considered whether it counts and

20:43

the 48 hours issue is just

20:45

creating the situation where not

20:47

only is it a lot of

20:49

power the government has, you're probably

20:52

not getting the same level of

20:54

consideration. You have a bunch of

20:56

moderators having to make these extreme

20:58

snap judgments without really that much legal

21:00

guidance necessarily. And so that, yeah, it's

21:03

not only a lot of power, it's

21:05

a lot of power without the kind

21:07

of consideration that we tend to try

21:10

to give the government when it

21:12

is making calls on speech. We need

21:14

to take a quick break. We'll

21:16

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24:29

At the federal level, there has

24:31

simply never been a good solution

24:33

for regulating non-consensual intimate imagery. It

24:36

isn't either too broad, which creates

24:38

potential civil liberties violations, or too

24:40

narrow, and that it covers too

24:42

little of the problem while the

24:44

problem is still evolving. That's what

24:46

we're seeing today, with AI making

24:48

NCII much more complicated. To take

24:50

a down act seems to be

24:53

firmly in the too broad category,

24:55

which raises all kinds of problems.

24:57

But we're not evaluating all this

24:59

in a vacuum. The states have

25:01

had a patchwork of laws trying

25:03

to cover the abuses of NCII

25:05

for years now to mixed results.

25:07

And as you've heard Addie and

25:10

I talk about, copyright law has

25:12

been one of the only effective

25:14

ways the government has been able

25:16

to curb some of this. The

25:18

government has been able to curb

25:20

some of this within the confines

25:22

of this within the confines of

25:25

this all leave us. And what

25:27

about the current Trump administration has

25:29

Addie concerned that this new bill

25:31

might be weaponized in ways that

25:33

severely undermine its goals? So in

25:35

a normal environment, maybe this law

25:37

passes, maybe there's a bunch of

25:39

chaos, there's a bunch of lawsuits,

25:42

a bunch of... platforms might issue

25:44

some policy documents and we would

25:46

slowly and somewhat chaoticly stumble towards

25:48

a revised policy, right? Maybe the

25:50

law gets amended, maybe there's an

25:52

enforcement regime that builds up around

25:54

the law, something. Frankly, the most

25:56

likely outcome is that someone takes

25:59

this law to court and a

26:01

lot of this is declared unconstitutional.

26:03

Sure. In a functioning system and

26:05

then... maybe part of the law

26:07

stands and maybe hopefully it's a

26:09

good part that isn't open to

26:11

abuse, but good chance it would

26:14

just get overturned. Right, and even

26:16

in that process, I think Congress

26:18

would look at that and say,

26:20

okay, this is a problem, we're

26:22

going to have some solutions for

26:24

the back end of this winter

26:26

lose, right? Like, you can see

26:28

how the normal policymaking legal judicial

26:31

process might otherwise play out. We

26:33

have a lot of history with

26:35

that. Your piece. is titled, The

26:37

Take It Down Act isn't a

26:39

law, it's a weapon, and your

26:41

thesis is that we do not

26:43

live in a normal world, and

26:45

the Trump administration in particular is

26:48

so sclerotic and so addicted to

26:50

selective enforcement that what they're really

26:52

going to do is pass this

26:54

law and then use it as

26:56

a cudgel to beat platforms in

26:58

the submission. process we've been talking

27:00

about this whole time just assumes

27:03

there's a functioning government, there's a

27:05

hard problem, everybody in the government

27:07

fights about this problem, civil society

27:09

does, people play their part, but

27:11

everyone's kind of acting in good

27:13

faith, everyone does actually care about

27:15

stopping NCII, they do recognize that

27:17

there are problems with overbroad restrictions

27:20

on speech, and everyone's trying to

27:22

work toward a solution because they

27:24

believe that laws are things that

27:26

should be applied evenly, and that

27:28

fundamentally work with the Constitution. The

27:30

Trump administration just doesn't believe in

27:32

the rule of law. It doesn't

27:34

think that laws are things that

27:37

you should apply to everyone in

27:39

the way that they are meant

27:41

to be applied by Congress. What

27:43

it believes is that laws are

27:45

things that you apply to the

27:47

people that you hate in any

27:49

way that can hurt them and

27:52

you don't apply them to the

27:54

people that you like. The way

27:56

that you apply them is not

27:58

actually in a way that stops

28:00

the problem they're meant to address,

28:02

it's a way that gets you

28:04

the thing you want, which probably

28:06

has nothing to do with that.

28:09

So we've seen this say play

28:11

out with the TikTok ban might

28:13

be the most absolutely egregious example,

28:15

which is that while I don't

28:17

agree with the ban, it was

28:19

something that was passed with a

28:21

bunch of bipartisan support. It was

28:23

passed after years and years of

28:26

working with TikTok. It was then

28:28

sent up to the Supreme Court

28:30

and the Supreme Court upheld it.

28:32

It is hard to find a

28:34

law that was more rigorously vetted.

28:36

And then Trump takes office. a

28:38

day after it passes and he

28:41

says, well, specifically, I like Tiktok

28:43

because Tiktok got me elected and

28:45

also Tiktok has been saying I'm

28:47

really great. So what I'm going

28:49

to do is I'm going to

28:51

sign an executive order. The executive

28:54

order doesn't make an argument for

28:56

why I have the power to

28:58

extend this deadline. It doesn't make

29:00

any kind of argument for why

29:02

this is compatible with the law.

29:04

What it says is don't enforce

29:06

the law. And there is absolutely

29:09

no reason to do this that

29:11

is compatible with the thing that

29:13

Congress and the Biden administration and

29:15

the Supreme Court did, because he

29:17

doesn't care about the law. What

29:19

he cares about is getting the

29:21

law to do what he wants. And the

29:24

Trump administration is staffed

29:26

with folks who believe this, who act

29:28

this way. We talked about Brendan Carr

29:30

a lot at the FCC, who

29:32

uses his enforcement power or his

29:34

merger of view power. to push broadcasters

29:36

into doing whatever speech he wants

29:39

or punish them for news coverage

29:41

he doesn't like. There's Elon who seems

29:43

like an important character in all this

29:45

because he runs a platform. There's

29:48

Mark Zuckerberg who seems more amenable to

29:50

making deals with the Trump administration or

29:52

our moderation is saying, okay, we have

29:54

this bill that says if you don't

29:56

take down this injury in 48 hours,

29:58

the FTC can find you. Is that

30:00

just another way for Trump to say,

30:02

I could destroy your company unless you

30:05

do what I want or I can

30:07

tell the FCC to hold off? Yeah,

30:09

there are two sides to this and

30:12

one of them is the side that

30:14

we talk about often, which is what

30:16

if this gets weaponized against people that

30:18

the government doesn't like? And then there's

30:21

the other side that I think less

30:23

often is raised before Trump, which is

30:25

even if you take this law seriously,

30:28

you're not going to get it applied

30:30

against the people that are actually hurting

30:32

NCII victims because, again, the administration doesn't

30:35

even care about applying the law to

30:37

people that it should be used against.

30:39

Elon is maybe the clearest example of

30:41

that, which is just, let's take the

30:44

extreme view that it is worth doing

30:46

anything to get NCI off the internet.

30:48

A place this would come into play

30:51

is X, formerly Twitter, which has had

30:53

probably the biggest NCAAI scandal of the

30:55

last several years, which is that a

30:58

bunch of Taylor Swift sexually graphic images

31:00

were posted there and spread there, and

31:02

it did very little to stop them.

31:05

It eventually kind of blocked searches for

31:07

Taylor Swift. If you're looking at major

31:09

platforms, it's the first one you think

31:11

of. You cannot enforce this law against

31:14

decks. It is almost literally inconceivable because

31:16

Elon Musk runs the department that governs

31:18

whether the FTC has money and people

31:21

who work there. The week before I

31:23

wrote this, we broke a story that

31:25

said that someone very likely Doge had

31:28

cut about a dozen people from the

31:30

FTC. I'm trying to imagine a scenario

31:32

where X completely ignores the law and

31:35

says, well, screw you, Taylor Swift, I

31:37

don't like you. In what world does

31:39

the FTC do anything? I can't think

31:41

of a way where it would act

31:44

in any way in the interests of

31:46

NCII victims. Right, you can just make

31:48

the comparison to the TikTok ban. Congress

31:51

passes a law, it goes to Supreme

31:53

Court, as I think the Take It

31:55

Down Act would immediately go to the

31:58

Supreme Court, some version of the law.

32:00

law remains or is thrown out, who

32:02

knows? And then you have a law

32:04

where the president can say, I'm telling

32:07

my FTC not to enforce this law

32:09

as it relates to X. But at

32:11

the same time, he might say, go

32:14

push Mark Zuckerberg. I want to make

32:16

sure I'm the most popular person on

32:18

Facebook today. And so if that doesn't

32:21

happen, we know for a fact that

32:23

this imagery exists on these platforms because

32:25

platforms at scale always have this imagery.

32:28

and we're going to find some way

32:30

for the FTC to punish, then Elon

32:32

go get a ton. And you can

32:34

just see that play out pretty simply.

32:37

I don't think you need to be

32:39

very imaginative to get to that scenario.

32:41

Is there any provision in this law

32:44

that would stop it? So Ted Cruz

32:46

and Amy Klobatar are the primary sponsors

32:48

of the bill, and I asked them,

32:51

do you think that X has any

32:53

way that they could be dinged for

32:55

this? They haven't gotten back to me?

32:57

I don't really know how you would

33:00

build that because the point of laws

33:02

is that Congress writes them and it

33:04

says here's what's supposed to happen and

33:07

the executive branch makes it happen. Like

33:09

the original sin here is that Congress

33:11

has now allowed the executive branch to

33:14

just decide that it doesn't pass laws

33:16

anymore. Like Congress isn't real. And there's

33:18

nothing that Congress can do inside one

33:21

individual bill to solve the fact that

33:23

it is seated all its authority. The

33:25

thing it has to do is get

33:27

that back and say, you have to

33:30

do what we want. So we have

33:32

to be able to write laws again.

33:34

So that problem is playing out, I

33:37

think, across the entire government. That's the

33:39

constitutional crisis that everyone is always talking

33:41

about, that we are always writing about.

33:44

But I just want to stay focused

33:46

on this sort of easy to grasp

33:48

notion of selective enforcement. In a world

33:50

where Donald Trump says there's illegal imagery

33:53

on YouTube, And I'm shutting down Google.

33:55

I'm imposing fines so high on Google

33:57

that it effectively can't run. And we're

34:00

not doing that for X. That's a

34:02

loss. Right? Like Google shows up and

34:04

goes to court and say this is

34:07

selective enforcement. There's some interest on the

34:09

other side of that that might reconcile

34:11

that, but that all feels like the

34:14

elephants are dancing and the regular people

34:16

who are actually the victims in this

34:18

imagery have no ability to stop the

34:20

bad thing from happening. Does that feel

34:23

like regular people who are actually the

34:25

victims in this situation have any recourse

34:27

at all? First of all, there's the

34:30

whole part where you can try to

34:32

directly go after the people who are

34:34

posting this stuff and making it, but...

34:37

In terms of the larger platform stuff,

34:39

you can probably file a lawsuit that

34:41

says this law is not getting followed.

34:43

And then that's good for you. You

34:46

do not have the power of somebody

34:48

like Google. You don't have the legal

34:50

resources. There are non-profits that will probably

34:53

back you, and it's worth a try,

34:55

but it is not something that regular

34:57

people should have to do, or that

35:00

regular people are probably the best equipped

35:02

to do. So that's just the sort

35:04

of graspable issue here. You have the

35:07

selective enforcement. You have massive disparities in

35:09

legal ability and resources and financing between

35:11

the platforms and regular people. You have

35:13

a constitutional crisis. Everyone can see that.

35:16

I really don't think it takes a

35:18

lot of imagination to see all of

35:20

that play out in the context of

35:23

this law and this administration. Then there's

35:25

one turn down the road, where I

35:27

think you do have to see some

35:30

farther consequences. You wrote in your piece,

35:32

there are concerns that this law, the

35:34

Take It Down Act, could be used

35:37

to undermine end-to-end encryption. or to somehow

35:39

go after Wikipedia. How would that work?

35:41

The end-to-end encryption is another kind of

35:43

thing that would be a problem even

35:46

outside Trump, which is that it's just

35:48

not necessarily clear that having a service

35:50

where you can't see what's on it

35:53

doesn't still mean you're in breach of

35:55

the law because you don't know whether

35:57

there's something that you're supposed to take

36:00

down. So say you're running signal or

36:02

eye message, and somebody says, well, there's

36:04

this person forwarding this image. And you

36:06

don't as the company by design have

36:09

access to that. or have the ability

36:11

to stop what people send through your

36:13

service. So are you then liable under

36:16

the FTC? This is just a problem

36:18

that comes up with all kinds of

36:20

rules about takedowns. It's a huge issue.

36:23

And then we get a little more

36:25

to the selective enforcement where it's always,

36:27

again, a problem, but we have never

36:30

had such a clear indication that a

36:32

presidency is going to abuse it. Trump.

36:34

has publicly said to Congress, well, I

36:36

think I'm going to use this law

36:39

too because nobody gets treated as badly

36:41

on the internet as me. And like

36:43

everything, he kind of frames it as

36:46

maybe a joke, but there is no

36:48

reason to believe that he's joking. He

36:50

has extorted millions of dollars from platforms

36:53

that banned him because he filed these

36:55

specious lawsuits and he's very powerful. So

36:57

you could really see a world where

36:59

he does decide that's not a joke.

37:02

I'm going to go after... any platform

37:04

that I think treats me badly. And

37:06

we also then have, like you've mentioned,

37:09

that Elon of it all, Elon has

37:11

made a really clear public stance against

37:13

how much he hates Wikipedia, which is

37:16

a platform full of user-generated content that

37:18

while it is carefully moderated could potentially

37:20

have a problem where bad actors egged

37:23

on by Trump or a functionary or

37:25

one of the many public outlets that

37:27

supports him, tries to get it punished

37:29

by the FTC for say somebody's... spamming

37:32

NCII on it and it's trying to

37:34

create a takedown process but that doesn't

37:36

stop the FTC from claiming that it's

37:39

violating this process and then they try

37:41

to just drain its resources with a

37:43

lawsuit that say it can fight but

37:46

it's just plausible enough that then courts

37:48

have to go in and try to

37:50

work through it. And that's assuming you

37:52

get a judge who is acting in

37:55

good faith, which there is pretty good

37:57

evidence that there are some Texas judges

37:59

that Elon Musk has worked with that

38:02

are not acting in good faith. of

38:04

allowed things like his lawsuit against media

38:06

matters, which is just absolutely ridiculous to

38:09

proceed in a way that has caused

38:11

it to lay off staff and that

38:13

has just drained it even

38:15

if it doesn't ultimately

38:18

lose. We need to take another

38:20

quick break. We'll be right back.

38:26

Sometimes a single performance can define

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Switched on Pop, we're exploring artists

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revealing the darker side of

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Gagga's mayhem. Listen to these

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live moments on Switched on

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39:40

Canva presents the killer of

39:42

productivity. It was an ordinary

39:44

workday until... Oh no! This

39:47

meeting! Could have been an email!

39:49

Run! Canva had a creative solve.

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40:00

Bring productivity killers to justice with creativity.

40:02

Love your work at canva.com. We're back

40:04

with virtuality editor Addie Robertson. Before the

40:07

break, we were diving to Addie's thesis

40:09

around the Take It Down Act and

40:11

how it might be weaponized by the

40:13

Trump administration. What makes it worse is

40:16

the fact that this Congress has ceded

40:18

so much of its authority to the

40:20

executive branch in a way that puts

40:22

us in a very precarious position when

40:25

it comes to preventing presidential overreach. So

40:27

what happens next? And more importantly, is

40:29

there a way to actually tackle the

40:32

problem of NCII in a meaningful way

40:34

at the federal level? Or are the

40:36

victims here just caught in a political

40:38

power struggle as the problem keeps getting

40:41

worse? litigation might be able to solve

40:43

some of these problems, but it is

40:45

costly and slow going and by no

40:48

means certain. And that feels like a

40:50

thing that the Trump administration has not

40:52

realized, right? That flooding the zone with

40:54

all of these actions, with all these

40:57

executive orders, maybe they'll lose even a

40:59

majority of them, but the... The concept

41:01

of action actually brings people into line.

41:04

Do you think this is part of

41:06

that trend? You mentioned Amy Klobuchar is

41:08

one of the sponsors here. Is this

41:10

truly a bipartisan effort or is this

41:13

a bunch of people want something to

41:15

happen and this is the thing that

41:17

seems most likely to happen? I think

41:20

this is bipartisan in the sense that

41:22

these laws have been coming up for

41:24

years now, take it down act. is

41:26

part of a long line of internet

41:29

safety bills. Those bills are bipartisan because

41:31

this is an issue that a lot

41:33

of people care about and genuinely do

41:35

want to stop. But I think that

41:38

Democrats in Congress have just done an

41:40

almost incredibly bad job of responding to

41:42

the threat of the Trump administration. And

41:45

it feels almost like this is just

41:47

inertia of this is a thing that

41:49

maybe you could have done under another

41:51

administration and maybe you could have had

41:54

these fights. that we talked about to

41:56

try to make it better and there's

41:58

not in that world and they don't

42:01

recognize it. You and I have covered

42:03

attempts to regulate content on the internet,

42:05

attempts to regulate internet providers for a

42:07

decade now together, maybe more, which is

42:10

a little scary. And in that time,

42:12

I feel like my personal pendulum has

42:14

swung back and forth, right, to, well,

42:17

maybe we should do some rules for

42:19

platforms because the market is not providing

42:21

any incentive. for platforms to do this

42:23

stuff, right? Like in a sane world,

42:26

the platforms themselves would have gotten way

42:28

out ahead of we should not allow

42:30

sexualized AI-generated images of people, and they

42:33

would have stopped it. But instead, they're

42:35

going the other way, right? They're moderating

42:37

less and less. For some reason, maybe

42:39

to please Trump, maybe because it's cheaper,

42:42

who knows? And so it feels like,

42:44

okay, the government should set some rules.

42:46

And we see that happen in other

42:48

countries. government speech regulation is bad because

42:51

it will just be weaponized by a

42:53

corrupt administration. And I don't know where

42:55

that pendulum will ever land. I don't

42:58

know if it will ever stop swinging

43:00

for me. I'm curious where you are

43:02

because again, you and I have been

43:04

doing this together for so long. Yeah,

43:07

I think there are a few questions

43:09

for me. The first question is how

43:11

much laws could address big platforms at

43:14

all. There's the the theorem that Mike

43:16

Maznick came up with, which is just

43:18

that content moderation at scale that's good

43:20

as impossible. So for instance meta... platforms,

43:23

they do have rules against NCII. They

43:25

have systems they've created that are meant

43:27

to take it down. They're just a

43:30

gigantic platform and for them to moderate

43:32

at the level that they probably would

43:34

need to to actually comply with, say,

43:36

just promptly taking things down, would have

43:39

to be just massive. So there might

43:41

just be something. to bigness that makes

43:43

it inherently impossible. So that's the first

43:46

problem. Then the second problem right now

43:48

is, yeah, as you mentioned, for a

43:50

while it did actually seem like it

43:52

was the government versus big tech. So

43:55

at the very least, you had, if

43:57

you didn't like what these companies were

43:59

doing, the government was at least targeting

44:01

them and was trying to do something.

44:04

And we're just, I think, at the

44:06

other side of the tech lash now

44:08

because at this point, tech companies have

44:11

gotten a friendly administration. And so the

44:13

battle lines just aren't even drawn in

44:15

the same way, which means that you're,

44:17

I think, you can't trust Congress and

44:20

you can't trust the administration to the

44:22

same extent. And so pragmatically, even if

44:24

you think these laws are good in

44:27

theory, they're just less likely to make

44:29

sense and work, and that you also

44:31

have now this at least partial movement

44:33

to create alternative platforms that I think

44:36

is more successful than it's been in

44:38

the past. It's mostly come up through

44:40

micro blogging with, say, Blue Sky and

44:43

Mastodon are serious. attempts at contending with

44:45

these big platforms and those places are

44:47

clearly more vulnerable. So the kind of

44:49

threat that I think sometimes seemed really

44:52

hypothetical in previous years, which is well,

44:54

these big platforms are going to be

44:56

fine, but the little guys are going

44:59

to be fine, but the little guys

45:01

are going to be hurt, which made

45:03

less sense when say you didn't know

45:05

where the little guys were and the

45:08

big platform seemed like they were going

45:10

to get hurt. We're just in that

45:12

hypothetical situation now. Like the stuff that

45:14

sounded to me maybe kind of like

45:17

I'm being paranoid here. It's less. Yeah,

45:19

we can just read about it every

45:21

day. And I think one of the

45:24

interesting things about your piece was that

45:26

even some of the folks that we've

45:28

covered, that we've written about, that we've

45:30

interacted with, who have made different tradeoffs,

45:33

who said, actually this problem is so

45:35

bad, the speech tradeoffs might be worth

45:37

it, are agreeing with you that this

45:40

bill is a weapon that the Trump

45:42

administration could use. Marian Franks, who is

45:44

someone who is someone who takes a

45:46

different stance on the First Amendment in

45:49

general than me and... a variety of

45:51

people that are similar to me has

45:53

still said, yeah, I wish it weren't

45:56

true that the Trump administration's probably going

45:58

to weaponize this in a way that

46:00

doesn't necessarily help NCII victims, but it

46:02

is. This is a crisis that a

46:05

lot of people think is unfortunately just

46:07

going to skew the battlefield. And I

46:09

think that comes back to you can

46:11

have a lot of smart people with

46:14

different views on where the line should

46:16

be. That's civil society. That's what you're

46:18

talking about. That's that system that is

46:21

built up, right? Here are the think

46:23

tanks, here are the policymakers, here are

46:25

the academics who are going to argue

46:27

about how to make policy and what

46:30

the tradeoffs are and whether these ideas

46:32

worked. And usually that leads you to

46:34

some rational refinement over time. But in

46:37

this case, I think that whole ecosystem,

46:39

that whole set of people, is looking

46:41

at bills like this, looking at the

46:43

Trump administration, saying, maybe we shouldn't give

46:46

them more power, because there isn't this

46:48

check on it. There isn't this refinement

46:50

process that will occur. And I'm just

46:53

not sure how we get back to

46:55

it. That seems like the thing that

46:57

has stopped everybody in their tracks, right?

46:59

We all know this is bad. Even

47:02

the problem is happening to Trump himself.

47:04

It's happening to his wife. It doesn't

47:06

seem like they're motivated to stop it,

47:09

right? Or if they're given the tools

47:11

to stop it, they will use the

47:13

tools to actually stop it. What do

47:15

you think is going on there? It

47:18

has just never been clear that there

47:20

is a group of people here who

47:22

care about what happens to them, they

47:24

don't care about what happens to anyone

47:27

else, and they also have spent... an

47:29

extraordinary amount of time and energy signaling

47:31

that they do not care about women,

47:34

that in fact they support men who

47:36

are accused of assaulting women, who are

47:38

accused of sex trafficking women, women make

47:40

up the vast majority of NCII victims,

47:43

and that this is part of their

47:45

attempt to establish an anti-woke culture that

47:47

this is a way to, as JD

47:50

Vance puts it just sort of more

47:52

broadly, that we need to protect masculinity,

47:54

that we need to let men be

47:56

men again. And I think that it

47:59

is rare to see someone so blatantly

48:01

tell you that he does not care

48:03

what happens to women as long as

48:06

it's the women he doesn't like. And

48:08

I think that you should absolutely not

48:10

trust anything that anyone in the Trump

48:12

administration says about protecting women because it

48:15

is only a way to get to

48:17

the people that he thinks shouldn't be

48:19

allowed to abuse women because he doesn't

48:22

like them. His cabinet is full of

48:24

men who have been fairly credibly accused

48:26

of abuse and assault and harassment. He

48:28

has recently... allegedly stepped into free someone

48:31

who a Republican attorney general has called

48:33

an admitted sex trafficker. I think that

48:35

we can't trust him. Women should not

48:37

trust him. No one who cares about

48:40

this issue should trust him. I mean

48:42

that is as clear of a statement

48:44

about the Trump administration as there's ever

48:47

been. It's obvious now in a way

48:49

that it was maybe subsumed in the

48:51

first Trump administration, but now it's right

48:53

there on the surface. I think in

48:56

the context of a law like this,

48:58

which is ostensibly meant to protect people,

49:00

but can actually be used as a

49:03

weapon against companies and people, the administration

49:05

isn't like, it's worth saying out loud.

49:07

What happens next? Is this law going

49:09

to pass? Is it going to get

49:12

signed by the president? Congress seems like

49:14

it's mired in dysfunction. What do the

49:16

next steps here look like? After Kosa,

49:19

which came within like one vote of

49:21

passing and then failed after everyone on

49:23

earth in Washington said they were going

49:25

to support it, I don't really know

49:28

what happens. It seems like anything could

49:30

fail now. This has advanced pretty far

49:32

and obviously it has the backing of

49:35

the President and First Lady, so I

49:37

think it's definitely a real threat. I

49:39

think that at this point... maybe congressional

49:41

dysfunction could still save us. I think

49:44

that maybe the best hope is that

49:46

Congress does manage to pass something that

49:48

is like the Defiance Act that has

49:50

broad support and that really does create

49:53

an actionable way to help this problem

49:55

that is less clearly weaponizable, and I'm

49:57

just hoping for that. I'd

50:00

like to like to thank Addy for joining me on

50:02

the show, the and thank you for listening. hope you

50:05

enjoyed it. enjoyed it. You why this episode or anything else,

50:07

you can email us email us at.com. verge. We We do do read

50:09

all the emails, I and I will tell you, in

50:11

the last week, we got one email saying an

50:13

interview was the most boring ever, and another email saying

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the interview was the best the ever done. ever, So another

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coming. saying You can also save me the on we'd ever done.

50:19

So keep them and we have a save me up an Instagram. on

50:21

threads.