WASHINGTON—Today, the Senate Judiciary Committee is scheduled to move forward with a markup of the NO FAKES Act. While NetChoice shares the goal of protecting Americans from the very real harms of unauthorized AI-generated deepfakes, the legislation in its current form contains critical flaws that threaten online expression and the technology sector.
“Good intentions do not make good law. We urge the Senate Judiciary Committee to delay advancing the NO FAKES Act until its serious flaws are addressed,” said Amy Bos, Vice President of Government Affairs at NetChoice. “As written, this bill creates a dangerous financial incentive for platforms to aggressively over-remove lawful content, burdens creators with an unworkable counter-notification system, and fails to deliver the uniform national standard its sponsors promised.”
The bill’s current liability structure penalizes platforms up to $750,000 per work for failing to comply with notice-and-takedown obligations, compared to just $25,000 for good-faith compliance. This massive disparity creates an inevitable First Amendment harm by forcing platforms to err on the side of aggressive content removal. Furthermore, the bill remains silent on how services outside the traditional “online service” definition, such as app stores, game stores, and private cloud providers, should handle claims once they have actual knowledge of an alleged replica. This regulatory silence leaves much of the digital ecosystem to guess at its obligations, practically guaranteeing widespread over-removal.
Despite promises of replacing a confusing state-by-state patchwork, the NO FAKES Act fails to establish a true national standard. By preserving every state digital-replica statute and common-law cause of action in existence as of January 2, 2025, the bill simply layers a complex federal regime on top of existing frameworks. Companies seeking to comply in good faith will still be forced to navigate dozens of conflicting state rules, resulting in immense regulatory red tape for American businesses.
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