DEFIANCE Act: Federal Lawsuit Rights for AI Deepfake Victims

Senate passed S.1837 unanimously on January 13, 2026. If enacted, victims of nonconsensual "intimate digital forgeries" can sue for $150,000-$250,000 liquidated damages plus attorney's fees. House action pending.

Senate: PASSED House: PENDING
Quick Answer: The DEFIANCE Act (S.1837) creates a federal civil cause of action for victims of AI-generated nonconsensual intimate images ("intimate digital forgeries"). Plaintiffs can elect $150,000 liquidated damages (or $250,000 in aggravated cases) instead of proving actual damages. The bill passed the Senate on Jan 13, 2026 and awaits House action. Separately, the TAKE IT DOWN Act (already law) requires platforms to remove such content within 48 hours of a valid request starting May 2026.
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📋 DEFIANCE Act (S.1837) Status Tracker

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Introduced
2025
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Senate Pass
Jan 13, 2026
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House
Pending
President
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Law
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What Is the DEFIANCE Act?

⚗ What the DEFIANCE Act Does

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The DEFIANCE Act (Disrupt Explicit Forged Images and Non-Consensual Edits Act, S.1837) amends federal law to create a civil cause of action for victims of nonconsensual "intimate digital forgeries" - AI-generated or manipulated sexual imagery.

Core Provision: New Federal Civil Remedy

Victims can sue in federal court anyone who knowingly produced, possessed with intent to disclose, disclosed, or solicited and received an "intimate digital forgery" without consent.

Amends 15 U.S.C. § 6851(b)

Key Features

  • Liquidated damages: $150,000 (or $250,000 if tied to stalking, harassment, or sexual assault)
  • Attorney's fees: Prevailing plaintiffs recover costs and reasonable fees
  • Equitable relief: TROs, preliminary injunctions, permanent injunctions ordering deletion
  • Privacy protections: Pseudonymous filing, sealing, protective orders
  • 10-year statute of limitations: From discovery or victim turning 18

What's an "Intimate Digital Forgery"?

The bill defines this precisely:

  1. An intimate visual depiction of an identifiable individual that
  2. Falsely represents the individual or the intimate conduct (in whole or part)
  3. Created via software, machine learning, AI, or other computer-generated means
  4. Is indistinguishable from authentic imagery to a reasonable viewer

Labels don't save you: Adding "fake" or "AI-generated" disclaimers does not take content out of scope.

🏛 Two Federal Laws: DEFIANCE vs. TAKE IT DOWN

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There are now two complementary federal tools for victims:

TAKE IT DOWN Act DEFIANCE Act
Status Signed into law (May 19, 2025) Passed Senate (Jan 13, 2026)
Focus Platform removal + criminal penalties Victim civil lawsuits
Mechanism 48-hour takedown after valid notice Federal court lawsuit for damages
Covers Real NCII + deepfakes AI deepfakes specifically
Remedy Content removal + up to 2-3 years criminal $150K-$250K + fees + injunctions
Platform deadline May 19, 2026 N/A (targets individuals)

Use both: File a TAKE IT DOWN notice to get content removed fast, then pursue DEFIANCE damages against the creator/distributor.

🔥 Why Congress Acted Now: The Grok Deepfake Crisis

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The DEFIANCE Act was fast-tracked after reports that xAI's Grok was being used to generate nonconsensual sexually explicit deepfakes at scale.

California AG Investigation (Jan 2026)

Attorney General Rob Bonta announced an investigation into xAI, citing reports that Grok features were used to create nonconsensual sexually explicit images, including of women and children.

The Scale Problem

  • "Nudification" apps can generate realistic fake nudes from clothed photos in seconds
  • No technical barrier: Anyone with a smartphone can create deepfake porn
  • Viral spread: Content spreads across platforms faster than takedown requests
  • Minors targeted: High school students creating deepfakes of classmates

Senator Dick Durbin moved to fast-track S.1837 specifically citing the Grok controversy and the need for victims to have meaningful legal recourse.

👤 Who Can Be Sued Under DEFIANCE

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Liable Parties

  • Creators: Anyone who knowingly produced the deepfake
  • Possessors with intent: Anyone who possesses it intending to disclose
  • Distributors: Anyone who disclosed it without consent
  • Solicitors: Anyone who solicited and received it

Knowledge Requirement

Plaintiff must show defendant knew or recklessly disregarded that:

  • The victim did not consent to the specific conduct (creation/disclosure/etc.)
  • The content depicts the victim in intimate circumstances

Platform Liability?

Section 230 likely still shields platforms from DEFIANCE claims as intermediaries. The bill targets creators and distributors, not hosts. Use TAKE IT DOWN for platform removal.

Elements of a DEFIANCE Act Claim

📖 Threshold Definitions (Element 0)

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Before analyzing the claim elements, these definitions must be satisfied:

"Identifiable Individual"

A
Body appears in the depiction

The person's body appears (in whole or part) in the intimate visual depiction or digital forgery

B
Identifiable by characteristics

Identifiable by face, likeness, or other distinguishing characteristic (including from information displayed with the depiction)

"Intimate Digital Forgery"

1
Falsely represents

Falsely represents (in whole or part) either the identifiable individual OR the conduct/content that makes it "intimate"

2
Created via AI/software

Created via software, machine learning, AI, or other computer-generated/technological means (including adapting/modifying/manipulating authentic imagery)

3
Indistinguishable from authentic

Indistinguishable from an authentic depiction when viewed as a whole by a reasonable person

Labels Don't Matter

Content still qualifies as an "intimate digital forgery" even if labeled "fake," even if context suggests it's fake, even if a disclaimer is attached.

⚗ Claim Type 1: Activity Claim (Production/Disclosure/etc.)

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This is the primary claim covering most deepfake scenarios:

Elements to Prove

1
Plaintiff is identifiable individual

Plaintiff is the subject of an intimate digital forgery (satisfies definitions above)

2
Defendant's knowing conduct

Defendant knowingly did at least ONE of: (a) produced it, (b) possessed with intent to disclose, (c) disclosed it, or (d) solicited and received it

3
Non-consent

Plaintiff did not consent to the specific conduct (production/possession/disclosure/solicitation)

4
Knowledge of non-consent

Defendant knew or recklessly disregarded plaintiff's lack of consent

5
Commerce nexus

The conduct is in or affects interstate/foreign commerce or uses any means or facility of such commerce

Commerce nexus is easy: Using the internet satisfies this element.

🔨 Claim Type 2: Production-Only Claim (Requires Harm)

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A narrower claim specifically for production that requires showing harm:

Elements to Prove

1
Plaintiff is identifiable individual

Same as Claim Type 1

2
Defendant knowingly produced

Defendant knowingly produced the intimate digital forgery

3
Non-consent + knowledge

Plaintiff did not consent AND defendant knew or recklessly disregarded this

4
Harm or likely harm

Plaintiff was harmed OR was reasonably likely to be harmed by the production

5
Commerce nexus

Same as Claim Type 1

When to use: When deepfake was created but not yet distributed. The harm requirement is the trade-off for catching pre-disclosure conduct.

💰 Available Remedies

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Damages

Type Amount Notes
Liquidated (standard) $150,000 Elect instead of proving actual damages
Liquidated (aggravated) $250,000 If tied to stalking, harassment, or sexual assault
Actual damages Variable Includes defendant's profits attributable to conduct
Punitive damages Variable Available for egregious conduct

Other Relief

  • Attorney's fees and costs: Prevailing plaintiffs recover
  • Injunctive relief: TRO, preliminary injunction, permanent injunction
  • Deletion orders: Court can order defendant to delete/destroy content
  • Privacy protections: Pseudonym filing, sealing, protective orders keeping content under court control

Statute of Limitations

Actions must be filed within 10 years of the later of:

  • When victim reasonably discovers the violation, OR
  • The date the victim turns 18

Evidence Preservation Checklist

⚠ If you just discovered a deepfake of yourself:

  1. Screenshot everything NOW - URL, username, timestamp, comments, the content itself
  2. Screen record the page - Scroll from profile to post, showing URL bar throughout
  3. Download the file if possible - Many platforms allow saving
  4. File platform report - Use NCII/intimate image reporting (TAKE IT DOWN Act compliant)
  5. Do NOT confront the poster yet - They may delete evidence
  6. Contact an attorney - For preservation notices and litigation strategy

⏰ Immediate (0-60 Minutes)

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📋 Evidence Capture Checklist

If There's Extortion

Preserve: demand amount, payment method, wallet address, deadline, exact wording. This escalates criminal exposure significantly.

📅 Same Day Steps

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📋 Documentation Checklist

Preservation Notice Content

Your preservation demand to platforms and suspected posters should request they preserve:

  • Upload timestamps and IP logs
  • Device identifiers
  • Account recovery email/phone
  • Payment records if content was promoted/monetized
  • All communications related to the content

📆 Next 72 Hours

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📋 Litigation Prep Checklist

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Template Letters

📩 Platform Takedown Notice (TAKE IT DOWN Act)

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Use this template for platform reporting. After May 19, 2026, covered platforms must remove content within 48 hours of a valid request.

Subject: Urgent removal request: Nonconsensual intimate imagery (NCII) / intimate deepfake of [NAME] + preservation request To: [Platform NCII reporting address / legal / trust & safety] REPORTER INFORMATION Name: [Full legal name] Relationship to depicted person: [Self / Attorney / Authorized agent] Email: [Email] Phone: [Phone] DEPICTED PERSON (VICTIM) INFORMATION Name: [Victim name] Age: [Age] Confirmation: I am the depicted person or an authorized agent with authority to act for the depicted person. CONTENT TO BE REMOVED Primary URL(s): - [URL 1] - [URL 2] Account/profile URL(s): [Profile URL] Post IDs / usernames: [Handle, user ID, post ID] STATEMENT OF WHAT THE CONTENT IS This content is an AI-generated or computer-manipulated intimate deepfake (an "intimate digital forgery") that falsely depicts the person nude and/or engaged in sexually explicit conduct, without consent. NON-CONSENT STATEMENT The depicted person did not consent to the creation, posting, distribution, solicitation, or receipt of this content, and did not authorize any third party to do so. GOOD FAITH STATEMENT I have a good faith belief that the content identified above is nonconsensual intimate imagery or an intimate deepfake and should be removed under your policies and applicable law, including the TAKE IT DOWN Act. URGENT REQUESTS 1. Immediate removal/disable access to the content and any duplicates 2. Account enforcement consistent with your repeat offender and NCII policies 3. Preservation request: Please preserve all records relating to the content and the uploader pending legal process (upload timestamps, IP logs, device identifiers, account recovery details, payment data if promoted) ATTACHMENTS - Screenshots - Screen recording - File hash list - ID verification (if required) [Signature] [Name / Title / Law firm if applicable] [Email] | [Phone]

Platform Reporting Links

⚗ Demand Letter to Creator/Uploader

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Use when you've identified the creator or uploader. This letter puts them on notice and preserves your litigation options.

Bill Status Note

DEFIANCE has passed the Senate but is not yet law. This template cites it as "pending" legislation that will expand liability. Do not represent it as enacted until it passes the House and is signed.

[LAW FIRM LETTERHEAD] Date: [Date] Via: [Email / Certified mail] To: [Name / Handle / Email / Address] Re: Demand to cease and desist, remove nonconsensual intimate imagery, and preserve evidence REPRESENTATION AND PURPOSE I represent [Victim Name]. This letter concerns your creation, solicitation, possession-with-intent-to-disclose, and/or disclosure of nonconsensual intimate imagery, including an AI-generated intimate deepfake, depicting my client. THE CONTENT AT ISSUE The offending content appears at: - [URL 1] - [URL 2] Associated account(s): [Handle / ID] Date/time observed: [Date] Description: [Brief neutral description] NON-CONSENT AND HARM My client did not consent to the creation, solicitation, possession, or disclosure of this content, and your conduct has caused and continues to cause severe harm. LEGAL EXPOSURE Your conduct exposes you to substantial civil liability, including under: - Federal law providing a civil action relating to disclosure of intimate images (15 U.S.C. § 6851) - Applicable state law claims (privacy, harassment, injunctive relief) - The TAKE IT DOWN Act (Public Law 119-12), which criminalizes nonconsensual publication Congress has advanced the DEFIANCE Act of 2025 (S.1837), which passed the Senate on January 13, 2026 and expressly targets "intimate digital forgeries" with liquidated damages of $150,000-$250,000 plus attorney's fees. DEMANDS (IMMEDIATE ACTION REQUIRED) Within 24 hours of receipt, you must: A. CEASE AND DESIST Immediately stop any further posting, dissemination, solicitation, sale, or threatened dissemination. B. REMOVE AND DELETE - Remove the content from any platform or account you control - Delete all copies (including cloud storage, backups, chats, devices) - Delete any prompts, source files, intermediate renders, and "nudification" outputs C. IDENTIFY AND RETRACT Provide written statement identifying every platform/URL where posted and all recipients. D. PRESERVE EVIDENCE (LITIGATION HOLD) Preserve all evidence relating to creation, distribution, and monetization. Do not delete, wipe, or reset any relevant devices or accounts. NOTICE OF INTENT TO SEEK INJUNCTIVE RELIEF If you do not comply, we are prepared to pursue emergency relief including a temporary restraining order, preliminary injunction, and to seek statutory or actual damages, attorney's fees, and other relief. NO WAIVER Nothing in this letter is a complete statement of facts or claims, and no rights are waived. Sincerely, [Attorney Name] [Law Firm] [Email] | [Phone]

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California Deepfake Laws

🐻 California State Remedies

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California provides state-level remedies that work alongside federal law. You can pursue both.

Civil Code §1708.86 (AB 621, Chapter 673)

Creates civil liability for creating or distributing sexually explicit deepfakes.

  • Statutory damages: $1,500-$50,000 per violation
  • Malice enhancement: Up to $250,000 if defendant acted with malice
  • Plus: Actual damages, injunctions, attorney's fees

Chapter 673 (2025) | Effective: January 1, 2026

Civil Code §1708.85 - Expanded NCII Remedy

Original revenge porn civil remedy now explicitly covers AI-generated content depicting identifiable individuals.

  • General or special damages
  • Injunctions
  • Attorney's fees
  • Pseudonymous filing to protect victim identity

Penal Code §647(j)(4) - Criminal Revenge Porn

Misdemeanor to intentionally distribute intimate images without consent with intent to cause distress. Report to local police or DA.

⚖ Federal vs. California Claims: Strategy

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Federal (DEFIANCE) California (§1708.86)
Status Pending (passed Senate) In effect (Jan 1, 2026)
Liquidated damages $150K-$250K $1.5K-$50K (up to $250K w/ malice)
Venue Federal court State court
SOL 10 years 3 years (general tort)
Discovery Federal rules CA rules

Strategic Considerations

  • If DEFIANCE passes: Federal court may be better for higher liquidated damages and longer SOL
  • Currently: California state claims are your primary civil remedy
  • Both: You can plead state claims in federal court under supplemental jurisdiction
  • Malice: California's $250K malice enhancement may exceed DEFIANCE in egregious cases

Frequently Asked Questions

❔ DEFIANCE Act FAQ

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Is the DEFIANCE Act law yet?
No. The DEFIANCE Act (S.1837) passed the U.S. Senate on January 13, 2026 and is currently "held at the desk" in the House of Representatives. It must pass the House and be signed by the President to become law.
What's the difference between DEFIANCE and TAKE IT DOWN?
TAKE IT DOWN Act (already law, signed May 2025) focuses on platform removal (48-hour takedowns) and criminal penalties. DEFIANCE Act (pending) creates a civil lawsuit remedy allowing victims to sue for $150K-$250K in damages. Use TAKE IT DOWN to get content removed fast, then DEFIANCE (if passed) to sue for damages.
Can I sue if someone made a deepfake of me but didn't share it?
Under DEFIANCE, yes - but you'll need to use the "production-only" claim (Claim Type 2), which requires showing you were harmed or were reasonably likely to be harmed by the production. The activity claim (Claim Type 1) covers production without this harm requirement if the person possessed it with intent to disclose.
What if they labeled it "fake" or "AI-generated"?
Doesn't matter. The DEFIANCE Act explicitly states that content still qualifies as an "intimate digital forgery" even if labeled fake, even if context suggests it's fake, even if disclaimers are attached.
Can I sue the platform hosting the deepfake?
Probably not - Section 230 likely still shields platforms as intermediaries. DEFIANCE targets creators and distributors. For platform removal, use the TAKE IT DOWN Act's 48-hour removal process.
How long do I have to sue?
Under DEFIANCE, 10 years from the later of: (1) when you reasonably discover the violation, or (2) the date you turn 18. California state claims have a 3-year statute of limitations.
Can I file anonymously?
Yes. DEFIANCE explicitly authorizes pseudonymous filing, sealing, redaction, and protective orders keeping the imagery under court control. California Civil Code §1708.85 also allows pseudonymous filing.
What if I'm a minor?
The statute of limitations doesn't start running until you turn 18. Additionally, TAKE IT DOWN Act criminal penalties are enhanced (3 years instead of 2) when the victim is a minor. Contact law enforcement immediately - this may also implicate child exploitation laws.
Do I need to prove actual damages?
No. DEFIANCE allows you to elect liquidated damages ($150K or $250K) instead of proving actual damages. This is one of the bill's most victim-friendly features.

Questions about your deepfake case?

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