Preventing Deepfakes of Intimate Images Act

Enumerated powers · passes · severity: minor

Congress has authority under Article I, Section 8, Clause 3 (Commerce Clause) to regulate the disclosure of intimate deepfakes because such disclosures involve interstate commerce, including the use of the internet and digital platforms that cross state lines. The bill targets a form of harmful speech that has a substantial effect on interstate commerce, and the federal interest in protecting individuals from nonconsensual intimate image abuse is well-established. However, the connection to commerce is somewhat attenuated for purely intrastate disclosures, but the overall scheme falls within Congress's commerce power.

Bill of Rights · raises concerns · severity: significant

The bill raises significant First Amendment concerns. While the government can regulate certain categories of speech, such as obscenity and true threats, the bill's definition of 'digital depiction' and 'sexually explicit conduct' may be overbroad, potentially covering protected speech like satire, parody, or artistic expression. The bill criminalizes disclosure without requiring proof of intent to harm, which could chill legitimate speech. Additionally, the bill does not include an exception for disclosures that are newsworthy or in the public interest, which could infringe on press freedoms. The Supreme Court has held that content-based restrictions on speech must be narrowly tailored to serve a compelling government interest (see Reed v. Town of Gilbert, 576 U.S. 155 (2015)), and this bill may not meet that standard.

Individual liberty · passes

The bill protects individual sovereignty by safeguarding a person's control over their intimate images, which is a fundamental aspect of personal autonomy and privacy. The right to privacy in intimate matters is deeply rooted in the Constitution (see Griswold v. Connecticut, 381 U.S. 479 (1965) and Lawrence v. Texas, 539 U.S. 558 (2003)). By criminalizing the nonconsensual disclosure of intimate deepfakes, the bill enhances individual sovereignty rather than restricting it. However, the bill does impose restrictions on the speech of the discloser, but this is justified by the compelling state interest in protecting individuals from severe emotional and reputational harm.

Decentralization · raises concerns · severity: significant

The bill fails the decentralization test because it consolidates criminal enforcement at the federal level when states are fully capable of addressing this issue. States have long enacted laws against revenge porn and nonconsensual intimate image sharing, and they are better positioned to handle local cases. The federal government's involvement is not necessary to address this issue, as states can and do handle it effectively. This bill represents an unnecessary federalization of a crime that is primarily local in nature, violating the principle of federalism and the Tenth Amendment's reservation of powers to the states.

Due process and takings · passes

The bill does not violate due process or the Takings Clause. It provides fair notice of what conduct is prohibited, and the criminal penalties are not arbitrary or capricious. The bill does not take property without just compensation; it regulates conduct, not property. The bill's provisions are clear enough to satisfy the void-for-vagueness doctrine, though the definition of 'digital depiction' could be more precise. Overall, the bill does not implicate the Takings Clause or procedural due process concerns.