TL;DR Minnesota sought to ban nudification sites and apps by aiming its sights at the tool, rather than the holder of the salacious and AI-modified images. These nudification apps allow users to take a photo of real person, and instantly make it into a nude, sexualized image, with a couple of clicks. The problem with Minnesota's statute is that it exempts tools that require a high level of skill to use. Thus, the validity of the statute appears to rest in the delicate balance of an undefined level of skill needed.

Minnesota’s ban on nudification technology, Minn. Stat. § 325E.91 (H.F. 1606), took effect August 1, 2026. Minnesota appears to be the first state to enact a stand-alone ban targeting access to nudification technology itself; the tool that creates naked pictures rather than the actual images that the tool can create. It’s a fabulous idea. It’s going for the heart of the problem.

The coverage I’ve seen has centered on two things:

1. the near-unanimous vote (132-1 in the House, 65-0 in the Senate), and

2. xAI’s First Amendment challenge, filed July 27 in the District of Minnesota, in which Judge Donovan W. Frank denied a TRO on July 31 on timing rather than the merits, with a preliminary injunction hearing set for August 19.

The first is great, and not surprising. The second is disappointing (the lawsuit, not the denial of the TRO), and also not surprising.

But these just center on Subdivision 2 — the prohibition. Neither is about Subdivision 3, which is my problem with this statute.

The Statute

Subdivision 2 provides that a person who owns or controls a website, application, software, program, or other service must not (1) allow a user to access, download, or use it to nudify an image or video, or (2) nudify an image or video on behalf of a user. Subdivision 2(b) separately bars advertising or promoting any such service.

There is no scienter requirement. There is no consent element. Section 325E.91 contains neither a lack-of-consent element nor an express consent defense; an otherwise covered use therefore appears covered even if the depicted individual consented. The operative violation is the provider’s allowing access, download, or use of a covered service to nudify, or nudifying on a user’s behalf; distribution is not an element. That part I love. There is no good-faith safe harbor for providers that prohibit nudification in their terms, deploy input and output classifiers, or maintain functioning trust-and-safety programs. Enforcement runs through the Attorney General under Minn. Stat. § 8.31, with a civil penalty of up to $500,000 per unlawful access, download, or use, plus a private action under Subdivision 4 for compensatory damages, including mental anguish or suffering, up to three times actual damages, injunctive relief, and fees. That’s a huge deterrent.

“Intimate part” is not defined in the statute. It is imported by cross-reference from Minn. Stat. § 609.341, subd. 5 — the criminal sexual conduct definitions — which reaches “the primary genital area, groin, inner thigh, buttocks, or breast of a human being.” That definition is apparently what xAI based their overbreadth argument on, since inner thighs and buttocks appear in swimwear photographs and men’s chests appear whenever a shirt comes off. xAI LLC. v. Ellison, No. 0:26-cv-03425 (D. Minn. filed July 27, 2026). I’ll look into that in a different article.

Then, the part I hate — Subdivision 3:

Exemption. The prohibitions in subdivision 2 do not apply when the website, application, software, program, or other service requires the technical skill of a user to nudify an image or video.

And Subdivision 1(e):

“Technical skill” means substantial application of individualized technological or artistic skill and judgment by a human creator in directing, shaping, or controlling the output.

Nudification Is Ok If Technical Skill Is Required

This law screams that it’s ok to take a clothed picture of a real person, and without their consent use it to create a naked, sexualized, salacious image, so long as it’s not easy to do.  Essentially, Minnesota has enacted a Photoshop carve-out. Using Photoshop well takes skill; I know, because I’ve used it for over a decade, and am still not good at it. It’s a professional compositing tool that demands hours of masking, layering, Gaussian blur and using various tool and manual judgment. None of this seems to fall within the prohibition. A one-click “remove clothing” app or feature does. The distinguishing variable is not the harm, not the consent, not the distribution, and not the resulting image. It is how much work the user had to do.

Wait, what? That is a genuinely novel move in tort drafting. Essentially, Minnesota has taken the human-authorship inquiry from copyright law and repurposed it as a liability trigger — but with the polarity reversed.

Compare the Copyright Office’s Part 2 report on copyrightability (Jan. 29, 2025), which concluded that generative outputs are protectable only where a human has determined sufficient expressive elements, and that prompts alone do not supply enough control. The D.C. Circuit’s decision in Thaler v. Perlmutter reaffirmed the human-authorship requirement where the application named an AI system as the sole author. The operative concept in both is degree of human control over the expressive result.

Subdivision 1(e) is that same concept — "individualized technological or artistic skill and judgment by a human creator in directing, shaping, or controlling the output.” In copyright, sufficient human control earns you rights. In § 325E.91, sufficient human control earns the provider immunity. The less the human contributes, the more the provider is at risk.

There is a coherent theory underneath this. The legislature is targeting frictionlessness — ease, speed, and scale. What this says to me is that mass-scale, no-skill, no-cost victimization of classmates and ex-partners is a different social problem than a skilled forger with a graphics tablet, even if the output looks the same. I get it. Regulating friction is a defensible policy instinct. But that defensibility doesn’t overcome the horrifying reality that legality comes down to how easy a non-consensual nudified pic was to create.

The "Technical Skill" Exemption Doesn’t Work

However, I see several drafting problems with it, which I address in the following section. But first, my take is that the Exemption that was meant to save the statute will backfire.

xAI’s last-minute lawsuit to stop enforcement of this law provided swimsuit-and-satire hypotheticals in support of its overbreadth arguments. Minnesota can answer with Subdivision 3: the statute does not reach typical creative tools, because those tools require real skill. And now Minnesota can maintain there is no facial overbreadth challenge.

But the same provision creates an under-inclusiveness problem. The statute’s apparent purpose is to address nonconsensual sexualized deepfakes, but its operative definition reaches realistic added ‘intimate parts’ without requiring sexual intent, lack of consent, or dissemination. An exemption that permits the identical image, of the identical victim, causing the identical harm, so long as the perpetrator used a more technical tool, does not accomplish what I imagine Minnesota wanted to accomplish. Plus, underinclusiveness has caused problems before — Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011), and Reed v. Town of Gilbert, 576 U.S. 155 (2015).

The state’s strongest framing is that Subdivision 3 is not a content exemption at all but a means-and-scale distinction. The legislature targeted the industrialized, ‘one click’ version of the conduct because that is the version producing harm at volume. Whether that survives strict scrutiny — assuming a court applies it, which it likely will to a nudity-defined restriction — is an open question with no direct precedent. We’re waiting on the August 19 hearing for that.

Why I Hate Minnesota’s Statute

Not the ambition. Not the goal. And not entirely the means. I genuinely appreciate what the statute is trying to accomplish. I am no advocate of pornography. And going after the tool instead of the image is smart, and the 132-1 vote reflects a legislature that understood the harm. They just apparently didn’t understand how to fix it.  And so for them, I (as an amateur and not a true Constitutional scholar) note these problems with the Statute:

1. Compliance Requires 100% Success

Despite its good intentions, § 325E.91 inverts the usual trust-and-safety incentive structure. Typically, a provider would reduce exposure by putting into place policy prohibitions, classifiers, refusal training, red-teaming, abuse reporting, and rate limiting. Under this statute, none of that matters. There is no reasonable-efforts defense, no notice-and-takedown pathway, no scienter element to negate. A provider that blocks 99.9% of nudification attempts is liable for the remaining 0.1% on identical terms as a purpose-built nudify site.

By making skill the determining factor, the statute rewards making the product harder to use. That is an odd thing for a consumer protection provision to incentivize. xAI has told the court it would have to strip back image-editing features for Minnesota users. That is the statute working as drafted, and maybe some users will decline to create naked pictures if they can't do it in one simple click. But it leaves a gigantic range of possibilities for sexually modifying a picture of a real person.

2. The Exemption Is Aimed At The Service Level, Not The Individual Level.

The text asks whether the service “requires the technical skill of a user.” It does not ask whether the particular user, in the particular instance, actually applied any technical skill. That question goes to product architecture, not a fact question about a defendant’s conduct.

The consequences run in both directions. A professional-grade editing suite appears categorically exempt — including when a determined user employs it to produce exactly the image the statute exists to prevent. A general-purpose model with a natural-language editing interface appears categorically covered — including when a user spends two hours iterating with detailed artistic direction, which is precisely the “substantial application of individualized technological or artistic skill and judgment” the definition describes.

The definition and the exemption are, in other words, pointed in different directions. Subdivision 1(e) describes what a person does. Subdivision 3 asks what a service requires. A court could reconcile them either way, and the reconciliation determines whether a large multimodal provider falls inside the statute, or not.

3. How Much Skill Is Enough? “Requires” Has No Measurement.

Does a service “require” technical skill if its default path is one click but its advanced path demands manual masking? Nearly every serious image tool now includes both an easy AI path, and a more difficult, technical one. My last use of Photoshop was all AI-driven. I could have stumbled my way through masking, and dodging and whatever, but there was a simple button that allowed

If the answer is that any available low-skill path in a tool defeats the exemption, then the exemption reaches almost nothing and xAI’s overbreadth argument from its last-minute lawsuit gets much stronger. If the answer is that any meaningful skill-intensive capability preserves the exemption, then a nudification service can escape the statute by including a professional mode--even if no one uses it--along with an easy, automated mode.

There is no guidance on burden of proof either. Nothing in the text tells us whether the exemption is an element the plaintiff must negate or an affirmative defense the provider must plead and prove. In a strict-liability statute with a $500,000 per-use penalty and treble damages, that is a pretty big issue.

4. Who and What Is This Really Going to Affect?

Who is Minnesota really trying to stop from making it easy to nudify real images? The legislative record describes a specific problem: purpose-built nudification sites, free, requiring no skill, used at scale against classmates and ex-partners and, well, anyone you can take a picture of. But the Minnesota statute will have the most trouble reaching exactly those defendants.

We do not have to speculate about this, because someone has already tried. In August 2024, San Francisco City Attorney David Chiu sued the operators of 16 of the most-visited nudify websites — sites his office found had been visited more than 200 million times in the first half of that year. The named defendants were in Estonia, the United Kingdom, Spain, China, and a handful of U.S. shells.

Eighteen months later, Chiu reported that eight defendants had been served, two had settled, default judgments were expected against three more, and one defendant still could not be located at all. And when ten of the sites did go dark, the City Attorney attributed many site takedowns to voluntary cooperation from domain registrars and registries. The enforcement campaign did produce at least one stipulated judgment: Briver LLC agreed to a permanent injunction and $100,000 in civil penalties. But the truly effective means came later.

On July 17, 2026, Chiu skipped the operators entirely. He sent cease-and-desist letters to Apple and Google over 13 nudify apps, invoking California's facilitator liability and giving them 28 days. According to Wired and TechCrunch, Apple pulled three apps and began terminating developer accounts. Google suspended all five on its store. Two weeks, not eighteen months — because they went after defendants who cared more about their reputation than a few apps.

That is what Minnesota's statute cannot do. A $500,000-per-use penalty is a magnificent number, but against an anonymous shell in a non-cooperating jurisdiction there is no one to serve, nothing to attach, and a default judgment that essentially worthless.

Minnesota Could Have Gone About This a Better Way

California confronted the same problem and chose to handle it far more elegantly. Minnesota asked how hard a tool for nudification is to use. California asked what the purpose of the tool is. The difference in approach doesn’t take much consideration to appreciate California's approach.

California’s AB 621 (Bauer-Kahan), Chapter 673, Statutes of 2025, amended Civil Code § 1708.86 effective January 1, 2026. It defines a “deepfake pornography service” as a website, mobile application, or other service the primary purpose of which is to create digitized sexually explicit material. It extends liability to those who knowingly facilitate or recklessly aid or abet, and it uses a notice mechanism: a company providing services that enable a nudify site’s ongoing operation is presumed to have knowingly facilitated if it fails to disengage within 30 days of receiving evidence.

California uses a primary-purpose definition to identify a deepfake-pornography service, while its liability provisions retain consent, knowledge, disclosure, and facilitation predicates. Minnesota instead imposes a service-level prohibition keyed to the availability of nudification capability, subject to a technical-skill exemption.

Note that California did not accept a terms-of-service defense either — AB 621 provides expressly that a disclaimer prohibiting users from generating nonconsensual material is no defense. On that point Minnesota and California agree.

California’s legislative record contains the very same skill insight Minnesota codified. The Senate Judiciary Committee analysis (July 15, 2025) quotes a University of Washington Tech Policy Lab study observing that nudification applications let end-users “without technical or even Photoshop skills” generate non-consensual intimate imagery, and that AI-created imagery presents a fundamentally different paradigm from images made through Photoshop or technical skill.

Skill matters. But California treated it only as a diagnosis and then asked the more telling question — what is this service for? — because that is the question that separates a nudify site from Adobe’s Photoshop. Minnesota treated the same diagnosis as the legal test itself.

I've long told my children -- only complain about a problem when you can offer a solution. The solution I recommend stems from asking 'what is the harm we're really trying to stop with the statute?' The harm is the non-consensual nudification and often the sexualization of images of real people. There are times when nudity is beautiful, tasteful, and artfully meaningful. So the real harm is in the non-consensual nudification and sexualization of the images, perpetrated against another. (At least, I hope no one is complaining about a tool they can use to nudify pics of themselves.)

My Solution

• prohibit all instant nudifying tools/apps (so skill is a factor, and any true artist can still sacrifice their time and expertise for their art); and

• prohibit all non-consensual nudification of images of another.

Bottom Line

It's easy to put into words what I don't like about the Statute, as well-intentioned as it is. Easy = banned. Difficult = completely legal. The user’s hard work and technical skill makes it acceptable. That is the rule Minnesota wrote, and that is what I despise.

After the hearing on August 19 we'll find out what the judge does with xAI’s TRO, and that will perhaps give us more understanding at least about the constitutionality of the statute., although it likely won't go to the reasoning behind the skill level as the deterrent.

There is clearly something wrong with one of my articles when it doesn’t include a best practices section. And this one doesn’t. And so I will end and go work on an article with more practical information for lawyers who just want to use and understand AI that will make their lives better.  I will come back with Part II of this article, however, comparing the three state templates already in existence for regulating this issue.

© 2026 Amy Swaner. All Rights Reserved.  May use with attribution and link to article.