EFF update

Things are speeding up in generative AI legal cases, with two judicial opinions just out on an issue that will shape the future of generative AI: whether training gen-AI models on copyrighted works is fair use. One gets it spot on; the other, not so much, but fortunately in a way that future courts can and should discount.

The core question in both cases was whether using copyrighted works to train Large Language Models (LLMs) used in AI chatbots is a lawful fair use. Under the US Copyright Act, answering that question requires courts to consider:

1. whether the use was transformative;
2. the nature of the works (Are they more creative than factual? Long since published?)
3. how much of the original was used; and
4. the harm to the market for the original work.

In both cases, the judges focused on factors (1) and (4).

The right approach

In Bartz v. Anthropic, three authors sued Anthropic for using their books to train its Claude chatbot. In his order deciding parts of the case, Judge William Alsup confirmed what EFF has said for years: fair use protects the use of copyrighted works for training because, among other things, training gen-AI is “transformative—spectacularly so” and any alleged harm to the market for the original is pure speculation. Just as copying books or images to create search engines is fair, the court held, copying books to create a new, “transformative” LLM and related technologies is also protected:

[U]sing copyrighted works to train LLMs to generate new text was quintessentially transformative. Like any reader aspiring to be a writer, Anthropic’s LLMs trained upon works not to race ahead and replicate or supplant them—but to turn a hard corner and create something different. If this training process reasonably required making copies within the LLM or otherwise, those copies were engaged in a transformative use.

Importantly, Bartz rejected the copyright holders’ attempts to claim that any model capable of generating new written material that might compete with existing works by emulating their “sweeping themes, “substantive points,” or “grammar, composition, and style” was an infringement machine. As the court rightly recognized, building gen-AI models that create new works is beyond “anything that any copyright owner rightly could expect to control.” 

There’s a lot more to like about the Bartz ruling, but just as we were digesting it Kadrey v. Meta Platforms came out. Sadly, this decision bungles the fair use analysis.

A fumble on fair use

Kadrey is another suit by authors against the developer of an AI model, in this case Meta’s ‘Llama’ chatbot. The authors in Kadrey asked the court to rule that fair use did not apply.

Much of the Kadrey ruling by Judge Vince Chhabria is dicta—meaning, the opinion spends many paragraphs on what it thinks could justify ruling in favor of the author plaintiffs, if only they had managed to present different facts (rather than pure speculation). The court then rules in Meta’s favor because the plaintiffs only offered speculation. 

But it makes a number of errors along the way to the right outcome. At the top, the ruling broadly proclaims that training AI without buying a license to use each and every piece of copyrighted training material will be “illegal” in “most cases.” The court asserted that fair use usually won’t apply to AI training uses even though training is a “highly transformative” process, because of hypothetical “market dilution” scenarios where competition from AI-generated works could reduce the value of the books used to train the AI model..

That theory, in turn, depends on three mistaken premises. First, that the most important factor for determining fair use is whether the use might cause market harm. That’s not correct. Since its seminal 1994 opinion in Cambell v Acuff-Rose, the Supreme Court has been very clear that no single factor controls the fair use analysis.

Second, that an AI developer would typically seek to train a model entirely on a certain type of work, and then use that model to generate new works in the exact same genre, which would then compete with the works on which it was trained, such that the market for the original works is harmed. As the Kadrey ruling notes, there was no evidence that Llama was intended to to, or does, anything like that, nor will most LLMs for the exact reasons discussed in Bartz.

Third, as a matter of law, copyright doesn't prevent “market dilution” unless the new works are otherwise infringing. In fact, the whole purpose of copyright is to be an engine for new expression. If that new expression competes with existing works, that’s a feature, not a bug.

Gen-AI is spurring the kind of tech panics we’ve seen before; then, as now, thoughtful fair use opinions helped ensure that copyright law served innovation and creativity. Gen-AI does raise a host of other serious concerns about fair labor practices and misinformation, but copyright wasn’t designed to address those problems. Trying to force copyright law to play those roles only hurts important and legal uses of this technology.

In keeping with that tradition, courts deciding fair use in other AI copyright cases should look to Bartz, not Kadrey.

This week, EFF joined EDRi and nearly 50 civil society organizations urging the European Commission’s President Ursula von der Leyen, Executive Vice President Henna Virkunnen, and Commissioners Michael McGrath and Hadja Lahbib to take immediate action and defend human rights in Hungary.

The European Commission has a responsibility to protect EU fundamental rights, including the rights of LGBTQ+ individuals in Hungary and across the Union

With Budapest Pride just two days away, Hungary has criminalized Pride marches and is planning to deploy real-time facial recognition technology to identify those participating in the event. This is a flagrant violation of fundamental rights, particularly the rights to free expression and assembly.

On April 15, a new amendment package went into effect in Hungary which authorizes the use of real-time facial recognition to identify protesters at ‘banned protests’ like LGBTQ+ events, and includes harsh penalties like excessive fines and imprisonment. This is prohibited by the EU Artificial Intelligence (AI) Act, which does not permit the use of real-time face recognition for these purposes.

This came on the back of members of Hungary’s Parliament rushing through three amendments in March to ban and criminalize Pride marches and their organizers, and permit the use of real-time facial recognition technologies for the identification of protestors. These amendments were passed without public consultation and are in express violation of the EU AI Act and Charter of Fundamental Rights. In response, civil society organizations urged the European Commission to put interim measures in place to rectify the violation of fundamental rights and values. The Commission is yet to respond—a real cause of concern.

This is an attack on LGBTQ+ individuals, as well as an attack on the rights of all people in Hungary. The letter urges the European Commission to take the following actions:

• Open an infringement procedure against any new violations of EU law, in particular the violation of Article 5 of the AI Act
• Adopt interim measures on ongoing infringement against Hungary’s 2021 anti LGBT law which is used as a legal basis for the ban on LGBTQIA+ related public assemblies, including Budapest Pride.

There's no question that, when EU law is at stake, the European Commission has a responsibility to protect EU fundamental rights, including the rights of LGBTQ+ individuals in Hungary and across the Union. This includes ensuring that those organizing and marching at Pride in Budapest are safe and able to peacefully assemble and protest. If the EU Commission does not urgently act to ensure these rights, it risks hollowing out the values that the EU is built from.

Read our full letter to the Commission here.

Can the cops get your online data? In short, yes. There are a variety of US federal and state laws which give law enforcement powers to obtain information that you provided to online services. But, there are steps you as a user and/or as a service provider can take to improve online privacy.

Law enforcement demanding access to your private online data goes back to the beginning of the internet. In fact, one of  EFF’s first cases, Steve Jackson Games v. Secret Service, exemplified the now all-too-familiar story where unfounded claims about illegal behavior resulted in overbroad seizures of user messages. But it’s not the ’90s anymore, the internet has become an integral part of everyone’s life. Everyone now relies on organizations big and small to steward our data, from huge service providers like Google, Meta, or your ISP, to hobbyists hosting a blog or Mastodon server. 

There is no “cloud,” just someone else's computer—and when the cops come knocking on their door, these hosts need to be willing to stand up for privacy, and know how to do so to the fullest extent under the law. These legal limits are also important for users to know, not only to mitigate risks in their security plan when choosing where to share data, but to understand whether these hosts are going to bat for them. Taking action together, service hosts and users can curb law enforcement getting more data than they’re allowed, protecting not just themselves but targeted populations, present and future.

This is distinct from law enforcement’s methods of collecting public data, such as the information now being collected on student visa applicants. Cops may use social media monitoring tools and sock puppet accounts to collect what you share publicly, or even within “private” communities. Police may also obtain the contents of communication in other ways that do not require court authorization, such as monitoring network traffic passively to catch metadata and possibly using advanced tools to partially reveal encrypted information. They can even outright buy information from online data brokers. Unfortunately there are few restrictions or oversight for these practices—something EFF is fighting to change.

Below however is a general breakdown of the legal processes used by US law enforcement for accessing private data, and what categories of private data these processes can disclose. Because this is a generalized summary, it is neither exhaustive nor should be considered legal advice. Please seek legal help if you have specific data privacy and security needs.

Type of data

Process used

Challenge prior to disclosure?

Proof needed

Subscriber information

Subpoena

Yes

Relevant to an investigation

Non-content information, metadata

Court order; sometimes subpoena

Yes

Specific and articulable facts that info is relevant to an investigation

Stored content

Search warrant

No

Probable cause that info will provide evidence of a crime

Content in transit

Super warrant

No

Probable cause plus exhaustion and minimization

Types of Data that Can be Collected

The laws protecting private data online generally follow a pattern: the more sensitive the personal data is, the greater factual and legal burden police have to meet before they can obtain it. Although this is not exhaustive, here are a few categories of data you may be sharing with services, and why police might want to obtain it.

• Subscriber Data: Information you provide in order to use the service. Think about ID or payment information, IP address location, email, phone number, and other information you provided when signing up. 
  • Law enforcement can learn who controls an anonymous account, and find other service providers to gather information from.
• Non-content data, or "metadata": This is saved information about your interactions on the service; like when you used the service, for how long, and with whom. Analogous to what a postal worker can infer from a sealed letter with addressing information.
• Law enforcement can use this information to infer a social graph, login history, and other information about a suspect’s behavior.

• Stored content: This is the actual content you are sending and receiving, like your direct message history or saved drafts. This can cover any private information your service provider can access. 
• This most sensitive data is collected to reveal criminal evidence. Overly broad requests also allow for retroactive searches, information on other users, and can take information out of its original context. 
• Content in transit: This is the content of your communications as it is being communicated. This real-time access may also collect info which isn’t typically stored by a provider, like your voice during a phone call.
  • Law enforcement can compel providers to wiretap their own services for a particular user—which may also implicate the privacy of users they interact with.

Legal Processes Used to Get Your Data

When US law enforcement has identified a service that likely has this data, they have a few tools to legally compel that service to hand it over and prevent users from knowing information is being collected.

Subpoena

Subpoenas are demands from a prosecutor, law enforcement, or a grand jury which do not require approval of a judge before being sent to a service. The only restriction is this demand be relevant to an investigation. Often the only time a court reviews a subpoena is when a service or user challenges it in court.

Due to the lack of direct court oversight in most cases, subpoenas are prone to abuse and overreach. Providers should scrutinize such requests carefully with a lawyer and push back before disclosure, particularly when law enforcement tries to use subpoenas to obtain more private data, such as the contents of communications.

Court Order

This is a similar demand to subpoenas, but usually pertains to a specific statute which requires a court to authorize the demand. Under the Stored Communications Act, for example, a court can issue an order for non-content information if police provide specific facts that the information being sought is relevant to an investigation. 

Like subpoenas, providers can usually challenge court orders before disclosure and inform the user(s) of the request, subject to law enforcement obtaining a gag order (more on this below). 

Search Warrant

A warrant is a demand issued by a judge to permit police to search specific places or persons. To obtain a warrant, police must submit an affidavit (a written statement made under oath) establishing that there is a fair probability (or “probable cause”) that evidence of a crime will be found at a particular place or on a particular person. 

Typically services cannot challenge a warrant before disclosure, as these requests are already approved by a magistrate. Sometimes police request that judges also enter gag orders against the target of the warrant that prevent hosts from informing the public or the user that the warrant exists.

Super Warrant

Police seeking to intercept communications as they occur generally face the highest legal burden. Usually the affidavit needs to not only establish probable cause, but also make clear that other investigation methods are not viable (exhaustion) and that the collection avoids capturing irrelevant data (minimization). 

Some laws also require high-level approval within law enforcement, such as leadership, to approve the request. Some laws also limit the types of crimes that law enforcement may use wiretaps in while they are investigating. The laws may also require law enforcement to periodically report back to the court about the wiretap, including whether they are minimizing collection of non-relevant communications. 

Generally these demands cannot be challenged while wiretapping is occurring, and providers are prohibited from telling the targets about the wiretap. But some laws require disclosure to targets and those who were communicating with them after the wiretap has ended. 

Gag orders

Many of the legal authorities described above also permit law enforcement to simultaneously prohibit the service from telling the target of the legal process or the general public that the surveillance is occurring. These non-disclosure orders are prone to abuse and EFF has repeatedly fought them because they violate the First Amendment and prohibit public understanding about the breadth of law enforcement surveillance.

How Services Can (and Should) Protect You

This process isn't always clean-cut, and service providers must ultimately comply with lawful demands for user’s data, even when they challenge them and courts uphold the government’s demands. 

Service providers outside the US also aren’t totally in the clear, as they must often comply with US law enforcement demands. This is usually because they either have a legal presence in the US or because they can be compelled through mutual legal assistance treaties and other international legal mechanisms. 

However, services can do a lot by following a few best practices to defend user privacy, thus limiting the impact of these requests and in some cases make their service a less appealing door for the cops to knock on.

Put Cops through the Process

Paramount is the service provider's willingness to stand up for their users. Carving out exceptions or volunteering information outside of the legal framework erodes everyone's right to privacy. Even in extenuating and urgent circumstances, the responsibility is not on you to decide what to share, but on the legal process. 

Smaller hosts, like those of decentralized services, might be intimidated by these requests, but consulting legal counsel will ensure requests are challenged when necessary. Organizations like EFF can sometimes provide legal help directly or connect service providers with alternative counsel.

Challenge Bad Requests

It’s not uncommon for law enforcement to overreach or make burdensome requests. Before offering information, services can push back on an improper demand informally, and then continue to do so in court. If the demand is overly broad, violates a user's First or Fourth Amendment rights, or has other legal defects, a court may rule that it is invalid and prevent disclosure of the user’s information.

Even if a court doesn’t invalidate the legal demand entirely, pushing back informally or in court can limit how much personal information is disclosed and mitigate privacy impacts.

Provide Notice 

Unless otherwise restricted, service providers should give notice about requests and disclosures as soon as they can. This notice is vital for users to seek legal support and prepare a defense.

Be Clear With Users 

It is important for users to understand if a host is committed to pushing back on data requests to the full extent permitted by law. Privacy policies with fuzzy thresholds like "when deemed appropriate" or “when requested” make it ambiguous if a user’s right to privacy will be respected. The best practices for providers not only require clarity and a willingness to push back on law enforcement demands, but also a commitment to be transparent with the public about law enforcement’s demands. For example, with regular transparency reports breaking down the countries and states making these data requests.

Social media services should also consider clear guidelines for finding and removing sock puppet accounts operated by law enforcement on the platform, as these serve as a backdoor to government surveillance.

Minimize Data Collection 

You can't be compelled to disclose data you don’t have. If you collect lots of user data, law enforcement will eventually come demanding it. Operating a service typically requires some collection of user data, even if it’s just login information. But the problem is when information starts to be collected beyond what is strictly necessary. 

This excess collection can be seen as convenient or useful for running the service, or often as potentially valuable like behavioral tracking used for advertising. However, the more that’s collected, the more the service becomes a target for both legal demands and illegal data breaches. 

For data that enables desirable features for the user, design choices can make privacy the default and give users additional (preferably opt-in) sharing choices. 

Shorter Retention

As another minimization strategy, hosts should regularly and automatically delete information when it is no longer necessary. For example, deleting logs of user activity can limit the scope of law enforcement’s retrospective surveillance—maybe limiting a court order to the last 30 days instead of the lifetime of the account. 

Again design choices, like giving users the ability to send disappearing messages and deleting them from the server once they’re downloaded, can also further limit the impact of future data requests. Furthermore, these design choices should have privacy-preserving default

Avoid Data Sharing 

Depending on the service being hosted there may be some need to rely on another service to make everything work for users. Third-party login or ad services are common examples with some amount of tracking built in. Information shared with these third-parties should also be minimized and avoided, as they may not have a strict commitment to user privacy. Most notoriously, data brokers who sell advertisement data can provide another legal work-around for law enforcement by letting them simply buy collected data across many apps. This extends to decisions about what information is made public by default, thus accessible to many third parties, and if that is clear to users.

(True) End-to-End Encryption

Now that HTTPS is actually everywhere, most traffic between a service and a user can be easily secured—for free. This limits what onlookers can collect on users of the service, since messages between the two are in a secure “envelope.” However, this doesn’t change the fact the service is opening this envelope before passing it along to other users, or returning it to the same user. With each opened message, this is more information to defend.

Better, is end-to-end encryption (e2ee), which just means providing users with secure envelopes that even the service provider cannot open. This is how a featureful messaging app like Signal can respond to requests with only three pieces of information: the account identifier (phone number), the date of creation, and the last date of access. Many services should follow suit and limit access through encryption.

Note that while e2ee has become a popular marketing term, it is simply inaccurate for describing any encryption use designed to be broken or circumvented. Implementing “encryption backdoors” to break encryption when desired, or simply collecting information before or after the envelope is sealed on a user’s device (“client-side scanning”) is antithetical to encryption. Finally, note that e2ee does not protect against law enforcement obtaining the contents of communications should they gain access to any device used in the conversation, or if message history is stored on the server unencrypted.

Protecting Yourself and Your Community

As outlined, often the security of your personal data depends on the service providers you choose to use. But as a user you do still have some options. EFF’s Surveillance Self-Defense is a maintained resource with many detailed steps you can take. In short, you need to assess your risks, limit the services you use to those you can trust (as much as you can), improve settings, and when all else fails, accessorize with tools that prevent data sharing in the first place—like EFF’s Privacy Badger browser extension.

Remember that privacy is a team sport. It’s not enough to make these changes as an individual, it’s just as important to share and educate others, as well as fighting for better digital privacy policy on all levels of governance. Learn, get organized, and take action.

 

California lawmakers are pushing one of the most dangerous privacy rollbacks we’ve seen in years. S.B. 690, what we’re calling the Corporate Cover-Up Act, is a brazen attempt to let corporations spy on us in secret, gutting long-standing protections without a shred of accountability.

The Corporate Cover-Up Act is a massive carve-out that would gut California’s Invasion of Privacy Act (CIPA) and give Big Tech and data brokers a green light to spy on us without consent for just about any reason. If passed, S.B. 690 would let companies secretly record your clicks, calls, and behavior online—then share or sell that data with whomever they’d like, all under the banner of a “commercial business purpose.”

Simply put, The Corporate Cover-Up Act (S.B. 690) is a blatant attack on digital privacy, and is written to eviscerate long-standing privacy laws and legal safeguards Californians rely on. If passed, it would:

• Gut California’s Invasion of Privacy Act (CIPA)—a law that protects us from being secretly recorded or monitored
• Legalize corporate wiretaps, allowing companies to intercept real-time clicks, calls, and communications
• Authorize pen registers and trap-and-trace tools, which track who you talk to, when, and how—without consent
• Let companies use all of this surveillance data for “commercial business purposes”—with zero notice and no legal consequences

This isn’t a small fix. It’s a sweeping rollback of hard-won privacy protections—the kind that helped expose serious abuses by companies like Facebook, Google, and Oracle.

TAKE ACTION

You Can't Opt Out of Surveillance You Don't Know Is Happening

Proponents of The Corporate Cover-Up Act claim it’s just a “clarification” to align CIPA with the California Consumer Privacy Act (CCPA). That’s misleading. The truth is, CIPA and CCPA don’t conflict. CIPA stops secret surveillance. The CCPA governs how data is used after it’s collected, such as through the right to opt out of your data being shared.

You can't opt out of being spied on if you’re never told it’s happening in the first place. Once companies collect your data under S.B. 690, they can:

• Sell it to data brokers
• Share it with immigration enforcement or other government agencies
• Use it to against abortion seekers, LGBTQ+ people, workers, and protesters, and
• Retain it indefinitely for profiling

…with no consent; no transparency; and no recourse.

The Communities Most at Risk

This bill isn’t just a tech policy misstep. It’s a civil rights disaster. If passed, S.B. 690 will put the most vulnerable people in California directly in harm’s way:

• Immigrants, who may be tracked and targeted by ICE
• LGBTQ+ individuals, who could be outed or monitored without their knowledge
• Abortion seekers, who could have location or communications data used against them
• Protesters and workers, who rely on private conversations to organize safely

The message this bill sends is clear: corporate profits come before your privacy.

We Must Act Now

S.B. 690 isn’t just a bad tech bill—it’s a dangerous precedent. It tells every corporation: Go ahead and spy on your consumers—we’ve got your back.

Californians deserve better.

If you live in California, now is the time to call your lawmakers and demand they vote NO on the Corporate Cover-Up Act.

TAKE ACTION

Spread the word, amplify the message, and help stop this attack on privacy before it becomes law.

On June 5th, the FBI released a PSA titled “Home Internet Connected Devices Facilitate Criminal Activity.” This PSA largely references devices impacted by the latest generation of BADBOX malware (as named by HUMAN’s Satori Threat Intelligence and Research team) that EFF researchers also encountered primarily on Android TV set-top boxes. However, the malware has impacted tablets, digital projectors, aftermarket vehicle infotainment units, picture frames, and other types of IoT devices. 

One goal of this malware is to create a network proxy on the devices of unsuspecting buyers, potentially making them hubs for various potential criminal activities, putting the owners of these devices at risk from authorities. This malware is particularly insidious, coming pre-installed out of the box from major online retailers such as Amazon and AliExpress. If you search “Android TV Box” on Amazon right now, many of the same models that have been impacted are still up being sold by sellers of opaque origins. Facilitating the sale of these devices even led us to write an open letter to the FTC, urging them to take action on resellers.

The FBI listed some indicators of compromise (IoCs) in the PSA for consumers to tell if they were impacted. But the average person isn’t running network detection infrastructure in their homes, and cannot hope to understand what IoCs can be used to determine if their devices generate “unexplained or suspicious Internet traffic.” Here, we will attempt to help give more comprehensive background information about these IoCs. If you find any of these on devices you own, then we encourage you to follow through by contacting the FBI's Internet Crime Complaint Center (IC3) at www.ic3.gov.

The FBI lists these IoC:

• The presence of suspicious marketplaces where apps are downloaded.
• Requiring Google Play Protect settings to be disabled.
• Generic TV streaming devices advertised as unlocked or capable of accessing free content.
• IoT devices advertised from unrecognizable brands.
• Android devices that are not Play Protect certified.
• Unexplained or suspicious Internet traffic.

The following adds context to above, as well as some added IoCs we have seen from our research.

Play Protect Certified

“Android devices that are not Play Protect certified” refers to any device brand or partner not listed here: https://www.android.com/certified/partners/. Google subjects devices to compatibility and security tests in their criteria for inclusion in the Play Protect program, though the mentioned list’s criteria are not made completely transparent outside of Google. But this list does change, as we saw with the tablet brand we researched being de-listed. This encompasses “devices advertised from unrecognizable brands.” The list includes international brands and partners as well.

Outdated Operating Systems

Other issues we saw were really outdated Android versions. For posterity, Android 16 just started rolling out. Android 9-12 appeared to be the most common versions routinely used. This could be a result of “copied homework” from previous legitimate Android builds, and often come with their own update software that can present a problem on its own and deliver second-stage payloads for device infection in addition to what it is downloading and updating on the device.

You can check which version of Android you have by going to Settings and searching “Android version”.

Android App Marketplaces

We’ve previously argued how the availability of different app marketplaces leads to greater consumer choice, where users can choose alternatives even more secure than the Google Play Store. While this is true, the FBI’s warning about suspicious marketplaces is also prudent. Avoiding “downloading apps from unofficial marketplaces advertising free streaming content” is sound (if somewhat vague) advice for set-top boxes, yet this recommendation comes without further guidelines on how to identify which marketplaces might be suspicious for other Android IoT platforms. Best practice is to investigate any app stores used on Android devices separately, but to be aware that if a suspicious Android device is purchased, it can contain preloaded app stores that mimic the functionality of legitimate ones but also contain unwanted or malicious code.

Models Listed from the Badbox Report

We also recommend looking up device names and models that were listed in the BADBOX 2.0 report. We investigated the T95 models along with other independent researchers that initially found this malware present. A lot of model names could be grouped in families with the same letters but different numbers. These operations are iterating fast, but the naming conventions are often lazy in this respect. If you're not sure what model you own, you can usually find it listed on a sticker somewhere on the device. If that fails, you may be able to find it by pulling up the original receipt or looking through your order history.

A Note from Satori Researchers:

“Below is a list of device models known to be targeted by the threat actors. Not all devices of a given model are necessarily infected, but Satori researchers are confident that infections are present on some devices of the below device models:”

List of Potentially Impacted Models

Broader Picture: The Digital Divide

Unfortunately, the only way to be sure that an Android device from an unknown brand is safe is not to buy it in the first place. Though initiatives like the U.S. Cyber Trust Mark are welcome developments intended to encourage demand-side trust in vetted products, recent shake ups in federal regulatory bodies means the future of this assurance mark is unknown. This means those who face budget constraints and have trouble affording top-tier digital products for streaming content or other connected purposes may rely on cheaper imitation products that are rife with not only vulnerabilities, but even come out-of-the-box preloaded with malware. This puts these people disproportionately at legal risk when these devices are used to provide the buyers’ home internet connection as a proxy for nefarious or illegal purposes.

Cybersecurity and trust that the products we buy won’t be used against us is essential: not just for those that can afford name-brand digital devices, but for everyone. While we welcome the IoCs that the FBI has listed in its PSA, more must be done to protect consumers from a myriad of dangers that their devices expose them to.

Written in collaboration with Privacy Rights Clearinghouse

Hundreds of data brokers have not registered with state consumer protection agencies. These findings come as more states are passing data broker transparency laws that require brokers to provide information about their business and, in some cases, give consumers an easy way to opt out.

In recent years, California, Texas, Oregon, and Vermont have passed data broker registration laws that require brokers to identify themselves to state regulators and the public. A new analysis by Privacy Rights Clearinghouse (PRC) and the Electronic Frontier Foundation (EFF) reveals that many data brokers registered in one state aren’t registered in others.

Companies that registered in one state but did not register in another include: 291 companies that did not register in California, 524 in Texas, 475 in Oregon, and 309 in Vermont. These numbers come from data analyzed from early April 2025.

PRC and EFF sent letters to state enforcement agencies urging them to investigate these findings. More investigation by states is needed to determine whether these registration discrepancies reflect widespread noncompliance, gaps and definitional differences in the various state laws, or some other explanation.

New data broker transparency laws are an essential first step to reining in the data broker industry. This is an ecosystem in which your personal data taken from apps and other web services can be bought and sold largely without your knowledge. The data can be highly sensitive like location information, and can be used to target you with ads, discriminate against you, and even enhance government surveillance. The widespread sharing of this data also makes it more susceptible to data breaches. And its easy availability allows personal data to be obtained by bad actors for phishing, harassment, or stalking.

Consumers need robust deletion mechanisms to remove their data stored and sold by these companies. But the potential registration gaps we identified threaten to undermine such tools. California’s Delete Act will soon provide consumers with an easy tool to delete their data held by brokers—but it can only work if brokers register. California has already brought a handful of enforcement actions against brokers who failed to register under that law, and such compliance efforts are becoming even more critical as deletion mechanisms come online.

It is important to understand the scope of our analysis.

This analysis only includes companies that registered in at least one state. It does not capture data brokers that completely disregard state laws by failing to register in any state. A total of 750 data brokers have registered in at least one state. While harder to find, shady data brokers who have failed to register anywhere should remain a primary enforcement target.

This analysis also does not claim or prove that any of the data brokers we found broke the law. While the definition of “data broker” is similar across states, there are variations that could require a company to register in one state and not another. To take one example, a data broker registered in Texas that only brokers the data of Texas residents would not be legally required to register in California. To take another, a data broker that registered with Vermont in 2020 that then changed its business model and is no longer a broker, would not be required to register in 2025. More detail on variations in data broker laws is outlined in our letters to regulators.

States should investigate compliance with data broker registration requirements, enforce their laws, and plug any loopholes. Ultimately, consumers deserve protections regardless of where they reside, and Congress should also work to pass baseline federal data broker legislation that minimizes collection and includes strict use and disclosure limits, transparency obligations, and consumer rights.

Clarification: We sent a letter to the Vermont Attorney General listing "309 data brokers that apparently have either not registered or re-registered" in Vermont. One of the companies listed in the Vermont letter, InfoPay, Inc., most recently registered as a data broker in Vermont on Jan. 13, 2025, according to current Vermont records. This registration did not appear in our own data when we originally gathered it from the state’s website on April 4-8, 2025.

Read more here:

California letter

Texas Letter

Oregon Letter

Vermont Letter

Spreadsheet of data brokers

This is the third post of a series about internet intermediary liability in Brazil. Our first post gives an overview of Brazil's current internet intermediary liability regime, set out in a law known as "Marco Civil da Internet," the context of its approval in 2014, and the beginning of the Supreme Court's judgment of such regime in November 2024. Our second post provides a bigger picture of the Brazilian context underlying the court's analysis and its most likely final decision. 

Update: Brazil’s Supreme Court analysis of the country’s intermediary liability regime concluded on June 26, 2025. With three dissenting votes in favor of Article 19’s constitutionality, the majority of the court deemed it partially unconstitutional. Part of the perils we pointed out have unfortunately come true. The ruling does include some (though not all) of the minimum safeguards we had recommended. The full content of the final thesis approved is available here. Some highlights: importantly, the court preserved Article 19’s regime for crimes against honor (such as defamation). However, the notice-and-takedown regime set in Article 21 became the general rule for platforms’ liability for user content. Platforms are liable regardless of notification for paid content they distribute (including ads) and for posts shared through “artificial distribution networks” (i.e., networks of bots). The court established a duty of care regarding the distribution of specific serious unlawful content. This monitoring duty approach is quite controversial, especially considering the varied nature and size of platforms. Fortunately, the ruling emphasizes that platforms can only be held liable for these specific contents without a previous notice if they fail to tackle them in a systemic way (rather than for individual posts). Article 19’s liability regime remains the general rule for applications like email services, virtual conference platforms, and messaging apps (regarding inter-personal messages). The entirety of the ruling, including the full content of Justice’s votes, will be published in the coming weeks.

The court’s examination of Marco Civil’s Article 19 began with Justice Dias Toffoli in November last year. We explained here about the cases under trial, the reach of the Supreme Court’s decision, and Article 19’s background related to Marco Civil’s approval in 2014. We also highlighted some aspects and risks of Justice Dias Toffoli’s vote, who considered the intermediary liability regime established in Article 19 unconstitutional.  

Most of the justices have agreed to find this regime at least partially unconstitutional, but differ on the specifics. Relevant elements of their votes include: 

• Notice-and-takedown is likely to become the general rule for platforms' liability for third-party content (based on Article 21 of Marco Civil). Justices still have to settle whether this applies to internet applications in general or if some distinctions are relevant, for example, applying only to those that curate or recommend content. Another open question refers to the type of content subject to liability under this rule: votes pointed to unlawful content/acts, manifestly criminal or clearly unlawful content, or opted to focus on crimes. Some justices didn’t explicitly qualify the nature of the restricted content under this rule.   

• If partially valid, the need for a previous judicial order to hold intermediaries liable for user posts (Article 19 of Marco Civil) remains in force for certain types of content (or certain types of internet applications). For some justices, Article 19 should be the liability regime in the case of crimes against honor, such as defamation. Justice Luís Roberto Barroso also considered this rule should apply for any unlawful acts under civil law. Justice Cristiano Zanin has a different approach. For him, Article 19 should prevail for internet applications that don’t curate, recommend or boost content (what he called “neutral” applications) or when there’s reasonable doubt about whether the content is unlawful.
  

• Platforms are considered liable for ads and boosted content that they deliver to users. This was the position held by most of the votes so far. Justices did so either by presuming platforms’ knowledge of the paid content they distribute, holding them strictly liable for paid posts, or by considering the delivery of paid content as platforms’ own act (rather than “third-party” conduct). Justice Dias Toffoli went further, including also non-paid recommended content. Some justices extended this regime to content posted by inauthentic or fake accounts, or when the non-identification of accounts hinders holding the content authors liable for their posts.   

• Monitoring duty of specific types of harmful and/or criminal content. Most concerning is that different votes establish some kind of active monitoring and likely automated restriction duty for a list of contents, subject to internet applications' liability. Justices have either recognized a “monitoring duty” or considered platforms liable for these types of content regardless of a previous notification. Justices Luís Roberto Barroso, Cristiano Zanin, and Flávio Dino adopt a less problematic systemic flaw approach, by which applications’ liability would not derive from each piece of content individually, but from an analysis of whether platforms employ the proper means to tackle these types of content. The list of contents also varies. In most of the cases they are restricted to criminal offenses, such as crimes against the democratic state, racism, and crimes against children and adolescents; yet they may also include vaguer terms, like “any violence against women,” as in Justice Dias Toffoli’s vote. 

• Complementary or procedural duties. Justices have also voted to establish complementary or procedural duties. These include providing a notification system that is easily accessible to users, a due process mechanism where users can appeal against content restrictions, and the release of periodic transparency reports. Justice Alexandre de Moraes also specifically mentioned algorithmic transparency measures. 

• Oversight. Justices also discussed which entity or oversight model should be used to monitor compliance while Congress doesn’t approve a specific regulation. They raised different possibilities, including the National Council of Justice, the General Attorney’s Office, the National Data Protection Authority, a self-regulatory body, or a multistakeholder entity with government, companies, and civil society participation. 

Three other justices have yet to present their votes to complete the judgment. As we pointed out, the ruling will both decide the individual cases that entered the Supreme Court through appeals and the “general repercussion” issues underlying these individual cases. For addressing such general repercussion issues, the Supreme Court approves a thesis that orients lower court decisions in similar cases. The final thesis will reflect the majority of the court's agreements around the topics we outlined above. 

Justice Alexandre de Moraes argued that the final thesis should equate the liability regime of social media and private messaging applications to the one applied to traditional media outlets. This disregards important differences between both: even if social media platforms curate content, it involves a massive volume of third-party posts, mainly organized through algorithms. Although such curation reflects business choices, it does not equate to media outlets that directly create or individually purchase specific content from approved independent producers. This is even more complicated with messaging applications, seriously endangering privacy and end-to-end encryption. 

Justice André Mendonça was the only one so far to preserve the full application of Article 19. His proposed thesis highlighted the necessity of safeguarding privacy, data protection, and the secrecy of communications in messaging applications, among other aspects. It also indicated that judicial takedown orders must provide specific reasoning and be made available to platforms, even if issued within a sealed proceeding. The platform must also have the ability to appeal the takedown order. These are all important points the final ruling should endorse. 

Risks and Blind Spots 

We have stressed the many problems entangled with broad notice-and-takedown mandates and expanded content monitoring obligations. Extensively relying on AI-based content moderation and tying it to intermediary liability for user content will likely exacerbate the detrimental effects of these systems’ limitations and flaws. The perils and concerns that grounded Article 19's approval remain valid and should have led to a position of the court preserving its regime.  

However, given the judgement’s current stage, there are still some minimum safeguards that justices should consider or reinforce to reduce harm.  

It’s crucial to put in place guardrails against the abuse and weaponization of notification mechanisms. At a minimum, platforms shouldn’t be liable following an extrajudicial notification when there’s reasonable doubt concerning the content’s lawfulness. In addition, notification procedures should make sure that notices are sufficiently precise and properly substantiated indicating the content’s specific location (e.g. URL) and why the notifier considers it to be illegal. Internet applications must also provide reasoned justification and adequate appeal mechanisms for those who face content restrictions.  

On the other hand, holding intermediaries liable for individual pieces of user content regardless of notification, by massively relying on AI-based content flagging, is a recipe for over censorship. Adopting a systemic flaw approach could minimally mitigate this problem. Moreover, justices should clearly set apart private messaging applications, as mandated content-based restrictions would erode secure and end-to-end encrypted implementations. 

Finally, we should note that justices generally didn’t distinguish large internet applications from other providers when detailing liability regimes and duties in their votes. This is one major blind spot, as it could significantly impact the feasibility of alternate and decentralized alternatives to Big Tech’s business models, entrenching platform concentration. Similarly, despite criticism of platforms’ business interests in monetizing and capturing user attention, court debates mainly failed to address the pervasive surveillance infrastructure lying underneath Big Tech’s power and abuses.   

Indeed, while justices have called out Big Tech’ enormous power over the online flow of information – over what’s heard and seen, and by whom – the consequences of this decision can actually deepen this powerful position. 

It’s worth recalling a line of Aaron Schwarz in the film “The Internet’s Own Boy” when comparing broadcasting and the internet. He said: “[…] what you see now is not a question of who gets access to the airwaves, it’s a question of who gets control over the ways you find people.” As he puts it, today’s challenge is less about who gets to speak, but rather about who gets to be heard.  

There’s an undeniable source of power in operating the inner rules and structures by which the information flows within a platform with global reach and millions of users. The crucial interventions must aim at this source of power, putting a stop to behavioral surveillance ads, breaking Big Tech’s gatekeeper dominance, and redistributing the information flow.  

That’s not to say that we shouldn’t care about how each platform organizes its online environment. We should, and we do. The EU Digital Services Act, for example, established rules in this sense, leaving the traditional liability regime largely intact. Rather than leveraging platforms as users’ speech watchdogs by potentially holding intermediaries liable for each piece of user content, platform accountability efforts should broadly look at platforms’ processes and business choices. Otherwise, we will end up focusing on monitoring users instead of targeting platforms’ abuses. 

This is the second post of a series about intermediary liability in Brazil. Our first post gives an overview of Brazil's current intermediary liability regime, the context of its approval in 2014, and the beginning of the Supreme Court's analysis of such regime in November 2024. Our third post provides an outlook on justices' votes up until June 23, underscoring risks, mitigation measures, and blind spots of their potential decision.

Update: Brazil’s Supreme Court analysis of the country’s intermediary liability regime concluded on June 26, 2025. With three dissenting votes in favor of Article 19’s constitutionality, the majority of the court deemed it partially unconstitutional. Part of the perils we pointed out have unfortunately come true. The ruling does include some (though not all) of the minimum safeguards we had recommended. The full content of the final thesis approved is available here. Some highlights: importantly, the court preserved Article 19’s regime for crimes against honor (such as defamation). However, the notice-and-takedown regime set in Article 21 became the general rule for platforms’ liability for user content. Platforms are liable regardless of notification for paid content they distribute (including ads) and for posts shared through “artificial distribution networks” (i.e., networks of bots). The court established a duty of care regarding the distribution of specific serious unlawful content. This monitoring duty approach is quite controversial, especially considering the varied nature and size of platforms. Fortunately, the ruling emphasizes that platforms can only be held liable for these specific contents without a previous notice if they fail to tackle them in a systemic way (rather than for individual posts). Article 19’s liability regime remains the general rule for applications like email services, virtual conference platforms, and messaging apps (regarding inter-personal messages). The entirety of the ruling, including the full content of Justice’s votes, will be published in the coming weeks.

The Brazilian Supreme Court has formed a majority to overturn the country’s current online intermediary liability regime. With eight out of eleven justices having presented their opinions, the court has reached enough votes to mostly remove the need for a previous judicial order demanding content takedown to hold digital platforms liable for user posts, which is currently the general rule.  

The judgment relates to Article 19 of Brazil’s Civil Rights Framework for the Internet (“Marco Civil da Internet,” Law n. 12.965/2014), wherein internet applications can only be held liable for third-party content if they fail to comply with a judicial decision ordering its removal. Article 19 aligns with the Manila Principles and reflects the important understanding that holding platforms liable for user content without a judicial analysis creates strong incentives for enforcement overreach and over censorship of protected speech.  

Nonetheless, while Justice André Mendonça voted to preserve Article 19’s application, four other justices stated it should prevail only in specific cases, mainly for crimes against honor (such as defamation). The remaining three justices considered that Article 19 offers insufficient protection to constitutional guarantees, such as the integral protection of children and teenagers.  

The judgment will resume on June 25th, with the three final justices completing the analysis by the plenary of the court. Whereas Article 19’s partial unconstitutionality (or its interpretation “in accordance with” the Constitution) seems to be the position the majority of the court will take, the details of each vote vary, indicating important agreements still to sew up and critical tweaks to make.   

As we previously noted, the outcome of this ruling can seriously undermine free expression and privacy safeguards if they lead to general content monitoring obligations or broadly expand notice-and-takedown mandates. This trend could negatively shape developments globally in other courts, parliaments, or with respect to executive powers. Sadly, the votes so far have aggravated these concerns.  

But before we get to them, let's look at some circumstances underlying the Supreme Court's analysis. 

2014 vs. 2025: The Brazilian Techlash After Marco Civil's Approval 

How did Article 19 end up (mostly) overturned a decade after Marco Civil’s much-celebrated approval in Brazil back in 2014?   

In addition to the broader techlash following the impacts of an increasing concentration of power in the digital realm, developments in Brazil have leveraged a harsher approach towards internet intermediaries. Marco Civil became a scapegoat, especially Article 19, within regulatory approaches that largely diminished the importance of the free expression concerns that informed its approval. Rather than viewing the provision as a milestone to be complemented with new legislation, this context has reinforced the view that Article 19 should be left behind. 

 The tougher approach to internet intermediaries gained steam after former President Jair Bolsonaro’s election in 2018 and throughout the legislative debates around draft bill 2630, also known as the “Fake News bill.”  

Specifically, though not exhaustive, concerns around the spread of disinformation, online-fueled discrimination, and political violence, as well as threats to election integrity, constitute an important piece of this scenario. This includes the use of social media by the far right within the escalation of acts seeking to undermine the integrity of elections and ultimately overthrow the legitimately elected President Luis Inácio da Silva in January 2023. Investigations later unveiled that related plans included killing the new president, the vice-president, and Justice Alexandre de Moraes.  

Concerns over child and adolescents’ rights and safety are another part of the underlying context. Among others, a wave of violent threats and actual attacks in schools in early 2023 was bolstered by online content. Social media challenges also led to injuries and deaths of young people.  

Finally, the political reactions to Big Tech’s alignment with far-right politicians and feuds with Brazilian authorities complete this puzzle. It includes reactions to Meta’s policy changes in January 2025 and the Trump’s administration’s decision to restrict visas to foreign officials based on grounds of limiting free speech online. This decision is viewed as an offensive against Brazil's Supreme Court from U.S. authorities in alliance with Bolsonaro’s supporters, including his son now living in the U.S. 

Changes in the tech landscape, including concerns about the attention-driven information flow, alongside geopolitical tensions, landed in Article 19 examination by the Brazilian Supreme Court. Hurdles in the legislative debate of draft bill 2630 turned attention to the internet intermediary liability cases pending in the Supreme Court as the main vehicles for providing “some” response. Yet, the scope of such cases (explained here) determined the most likely outcome. As they focus on assessing platform liability for user content and whether it involves a duty to monitor, these issues became the main vectors for analysis and potential change. Alternative approaches, such as improving transparency, ensuring due process, and fostering platform accountability through different measures, like risk assessments, were mainly sidelined.  

Read our third post in this series to learn more about the analysis of the Supreme Court so far and its risks and blind spots. 

Like users of all technologies, ChatGPT users deserve the right to delete their personal data. Nineteen U.S. States, the European Union, and a host of other countries already protect users’ right to delete. For years, OpenAI gave users the option to delete their conversations with ChatGPT, rather than let their personal queries linger on corporate servers. Now, they can’t. A badly misguided court order in a copyright lawsuit requires OpenAI to store all consumer ChatGPT conversations indefinitely—even if a user tries to delete them. This sweeping order far outstrips the needs of the case and sets a dangerous precedent by disregarding millions of users’ privacy rights.

The privacy harms here are significant. ChatGPT’s 300+ million users submit over 1 billion messages to its chatbots per day, often for personal purposes. Virtually any personal use of a chatbot—anything from planning family vacations and daily habits to creating social media posts and fantasy worlds for Dungeons and Dragons games—reveal personal details that, in aggregate, create a comprehensive portrait of a person’s entire life. Other uses risk revealing people’s most sensitive information. For example, tens of millions of Americans use ChatGPT to obtain medical and financial information. Notwithstanding other risks of these uses, people still deserve privacy rights like the right to delete their data. Eliminating protections for user-deleted data risks chilling beneficial uses by individuals who want to protect their privacy.

This isn’t a new concept. Putting users in control of their data is a fundamental piece of privacy protection. Nineteen states, the European Union, and numerous other countries already protect the right to delete under their privacy laws. These rules exist for good reasons: retained data can be sold or given away, breached by hackers, disclosed to law enforcement, or even used to manipulate a user’s choices through online behavioral advertising.

While appropriately tailored orders to preserve evidence are common in litigation, that’s not what happened here. The court disregarded the privacy rights of millions of ChatGPT users without any reasonable basis to believe it would yield evidence. The court granted the order based on unsupported assertions that users who delete their data are probably copyright infringers looking to “cover their tracks.” This is simply false, and it sets a dangerous precedent for cases against generative AI developers and other companies that have vast stores of user information. Unless courts limit orders to information that is actually relevant and useful, they will needlessly violate the privacy rights of millions of users.

OpenAI is challenging this order. EFF urges the court to lift the order and correct its mistakes.  

A bill purporting to target the issue of misinformation and defamation caused by generative AI has mutated into something that could change the internet forever, harming speech and innovation from here on out.

The Nurture Originals, Foster Art and Keep Entertainment Safe (NO FAKES) Act aims to address understandable concerns about generative AI-created “replicas” by creating a broad new intellectual property right. That approach was the first mistake: rather than giving people targeted tools to protect against harmful misrepresentations—balanced against the need to protect legitimate speech such as parodies and satires—the original NO FAKES just federalized an image-licensing system.

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The updated bill doubles down on that initial mistaken approach by mandating a whole new censorship infrastructure for that system, encompassing not just images but the products and services used to create them, with few safeguards against abuse.

The new version of NO FAKES requires almost every internet gatekeeper to create a system that will a) take down speech upon receipt of a notice; b) keep down any recurring instance—meaning, adopt inevitably overbroad replica filters on top of the already deeply flawed copyright filters;  c) take down and filter tools that might have been used to make the image; and d) unmask the user who uploaded the material based on nothing more than the say so of person who was allegedly “replicated.”

This bill would be a disaster for internet speech and innovation.

Targeting Tools

The first version of NO FAKES focused on digital replicas. The new version goes further, targeting tools that can be used to produce images that aren’t authorized by the individual, anyone who owns the rights in that individual’s image, or the law. Anyone who makes, markets, or hosts such tools is on the hook. There are some limits—the tools must be primarily designed for, or have only limited commercial uses other than making unauthorized images—but those limits will offer cold comfort to developers given that they can be targeted based on nothing more than a bare allegation. These provisions effectively give rights-holders the veto power on innovation they’ve long sought in the copyright wars, based on the same tech panics. 

Takedown Notices and Filter Mandate

The first version of NO FAKES set up a notice and takedown system patterned on the DMCA, with even fewer safeguards. NO FAKES expands it to cover more service providers and require those providers to not only take down targeted materials (or tools) but keep them from being uploaded in the future.  In other words, adopt broad filters or lose the safe harbor.

Filters are already a huge problem when it comes to copyright, and at least in that instance all it should be doing is flagging for human review if an upload appears to be a whole copy of a work. The reality is that these systems often flag things that are similar but not the same (like two different people playing the same piece of public domain music). They also flag things for infringement based on mere seconds of a match, and they frequently do not take into account context that would make the use authorized by law.

But copyright filters are not yet required by law. NO FAKES would create a legal mandate that will inevitably lead to hecklers’ vetoes and other forms of over-censorship.

The bill does contain carve outs for parody, satire, and commentary, but those will also be cold comfort for those who cannot afford to litigate the question.

Threats to Anonymous Speech

As currently written, NO FAKES also allows anyone to get a subpoena from a court clerk—not a judge, and without any form of proof—forcing a service to hand over identifying information about a user.

We've already seen abuse of a similar system in action. In copyright cases, those unhappy with the criticisms being made against them get such subpoenas to silence critics. Often that the criticism includes the complainant's own words as proof of the criticism, an ur-example of fair use. But the subpoena is issued anyway and, unless the service is incredibly on the ball, the user can be unmasked.

Not only does this chill further speech, the unmasking itself can cause harm to users. Either reputationally or in their personal life.

Threats to Innovation

Most of us are very unhappy with the state of Big Tech. It seems like not only are we increasingly forced to use the tech giants, but that the quality of their services is actively degrading. By increasing the sheer amount of infrastructure a new service would need to comply with the law, NO FAKES makes it harder for any new service to challenge Big Tech. It is probably not a coincidence that some of these very giants are okay with this new version of NO FAKES.

Requiring removal of tools, apps, and services could likewise stymie innovation. For one, it would harm people using such services for otherwise lawful creativity.  For another, it would discourage innovators from developing new tools. Who wants to invest in a tool or service that can be forced offline by nothing more than an allegation?

This bill is a solution in search of a problem. Just a few months ago, Congress passed Take It Down, which targeted images involving intimate or sexual content. That deeply flawed bill pressures platforms to actively monitor online speech, including speech that is presently encrypted. But if Congress is really worried about privacy harms, it should at least wait to see the effects of the last piece of internet regulation before going further into a new one. Its failure to do so makes clear that this is not about protecting victims of harmful digital replicas.

NO FAKES is designed to consolidate control over the commercial exploitation of digital images, not prevent it. Along the way, it will cause collateral damage to all of us.

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Tell Congress to Say No to NO FAKES

Module Developed by EFF, Freedom of the Press Foundation, and University of Texas, El Paso Guides Students Through Threat Modeling and Preparation

SAN FRANCISCO – A new college journalism curriculum module teaches students how to protect themselves and their digital devices when working near and across the U.S.-Mexico border. 

“Digital Security 101: Crossing the US-Mexico Border” was developed by Electronic Frontier Foundation (EFF) Director of Investigations Dave Maass and Dr. Martin Shelton, deputy director of digital security at Freedom of the Press Foundation (FPF), in collaboration with the University of Texas at El Paso (UTEP) Multimedia Journalism Program and Borderzine. 

The module offers a step-by-step process for improving the digital security of journalists passing through U.S. Land Ports of Entry, focusing on threat modeling: thinking through what you want to protect, and what actions you can take to secure it. 

This involves assessing risk according to the kind of work the journalist is doing, the journalist’s own immigration status, potential adversaries, and much more, as well as planning in advance for protecting oneself and one’s devices should the journalist face delay, detention, search, or device seizure. Such planning might include use of encrypted communications, disabling or enabling certain device settings, minimizing the data on devices, and mentally preparing oneself to interact with border authorities.  

The module, in development since early 2023, is particularly timely given increasingly invasive questioning and searches at U.S. borders under the Trump Administration and the documented history of border authorities targeting journalists covering migrant caravans during the first Trump presidency. 

"Today's journalism students are leaving school only to face complicated, new digital threats to press freedom that did not exist for previous generations. This is especially true for young reporters serving border communities," Shelton said. "Our curriculum is designed to equip emerging journalists with the skills to protect themselves and sources, while this new module is specifically tailored to empower students who must regularly traverse ports of entry at the U.S.-Mexico border while carrying their phones, laptops, and multimedia equipment." 

The guidance was developed through field visits to six ports of entry across three border states, interviews with scores of journalists and students from on both sides of the border, and a comprehensive review of CBP policies, while also drawing from EFF and FPF’s combined decades of experience researching constitutional rights and security techniques when it comes to our devices.  

“While this training should be helpful to investigative journalists from anywhere in the country who are visiting the borderlands, we put journalism students based in and serving border communities at the center of our work,” Maass said. “Whether you’re reviewing the food scene in San Diego and Tijuana, covering El Paso and Ciudad Juarez’s soccer teams, reporting on family separation in the Rio Grande Valley, or uncovering cross-border corruption, you will need the tools to protect your work and sources." 

The module includes a comprehensive slide deck that journalism lecturers can use and remix for their classes, as well as an interactive worksheet. With undergraduate students in mind, the module includes activities such as roleplaying a primary inspection interview and analyzing pop singer Olivia Rodrigo’s harrowing experience of mistaken identity while reentering the country. The module has already been delivered successfully in trainings with journalism students at UTEP and San Diego State University. 

“UTEP’s Multimedia Journalism program is well-situated to help develop this digital security training module,” said UTEP Communication Department Chair Dr. Richard Pineda. “Our proximity to the U.S.-Mexico border has influenced our teaching models, and our student population – often daily border crossers – give us a unique perspective from which to train journalists on issues related to reporting safely on both sides of the border.” 

For the “Digital security 101: Crossing the US-Mexico border” module: https://freedom.press/digisec/blog/border-security-module/ 

For more about the module: https://www.eff.org/deeplinks/2025/06/journalist-security-checklist-preparing-devices-travel-through-us-border

For EFF’s guide to digital security at the U.S. border: https://www.eff.org/press/releases/digital-privacy-us-border-new-how-guide-eff 

For EFF’s student journalist Surveillance Self Defense guide: https://ssd.eff.org/playlist/journalism-student 

Contact:  DaveMaassDirector of Investigationsdm@eff.org

This post was originally published by the Freedom of the Press Foundation (FPF). This checklist complements the recent training module for journalism students in border communities that EFF and FPF developed in partnership with the University of Texas at El Paso Multimedia Journalism Program and Borderzine. We are cross-posting it under FPF's Creative Commons Attribution 4.0 International license. It has been slightly edited for style and consistency.

Before diving in: This space is changing quickly! Check FPF's website for updates and contact them with questions or suggestions. This is a joint project of Freedom of the Press Foundation (FPF) and the Electronic Frontier Foundation.

Those within the U.S. have Fourth Amendment protections against unreasonable searches and seizures — but there is an exception at the border. Customs and Border Protection (CBP) asserts broad authority to search travelers’ devices when crossing U.S. borders, whether traveling by land, sea, or air. And unfortunately, except for a dip at the start of the COVID-19 pandemic when international travel substantially decreased, CBP has generally searched more devices year over year since the George W. Bush administration. While the percentage of travelers affected by device searches remains small, in recent months we’ve heard growing concerns about apparent increased immigration scrutiny and enforcement at U.S. ports of entry, including seemingly unjustified device searches.

Regardless, it’s hard to say with certainty the likelihood that you will experience a search of your items, including your digital devices. But there’s a lot you can do to lower your risk in case you are detained in transit, or if your devices are searched. We wrote this checklist to help journalists prepare for transit through a U.S. port of entry while preserving the confidentiality of your most sensitive information, such as unpublished reporting materials or source contact information. It’s important to think about your strategy in advance, and begin planning which options in this checklist make sense for you.

First thing’s first: What might CBP do?

U.S. CBP’s policy is that they may conduct a “basic” search (manually looking through information on a device) for any reason or no reason at all. If they feel they have reasonable suspicion “of activity in violation of the laws enforced or administered by CBP” or if there is a “national security concern,” they may conduct what they call an “advanced” search, which may include connecting external equipment to your device, such as a forensic analysis tool designed to make a copy of your data.

Your citizenship status matters as to whether you can refuse to comply with a request to unlock your device or provide the passcode. If you are a U.S. citizen entering the U.S., you have the most legal leverage to refuse to comply because U.S. citizens cannot be denied entry — they must be let back into the country. But note that if you are a U.S. citizen, you may be subject to escalated harassment and further delay at the port of entry, and your device may be seized for days, weeks, or months.

If CBP officers seek to search your locked device using forensic tools, there is a chance that some (if not all of the) information on the device will be compromised. But this probability depends on what tools are available to government agents at the port of entry, if they are motivated to seize your device and send it elsewhere for analysis, and what type of device, operating system, and security features your device has. Thus, it is also possible that strong encryption may substantially slow down or even thwart a government device search.

Lawful permanent residents (green-card holders) must generally also be let back into the country. However, the current administration seems more willing to question LPR status, so refusing to comply with a request to unlock a device or provide a passcode may be risky for LPRs. Finally, CBP has broad discretion to deny entry to foreign nationals arriving on a visa or via the visa waiver program.

At present, traveling domestically within the United States, particularly if you are a U.S. citizen, is lower risk than travelling internationally. Our luggage and the physical aspects of digital devices may be searched — e.g., manual inspection or x-rays to ensure a device is not a bomb. CBP is often present at airports, but for domestic travel within the U.S. you should only be interacting with the Transportation Security Administration. TSA does not assert authority to search the data on your device — this is CBP’s role.

At an international airport or other port of entry, you have to decide whether you will comply with a request to access your device, but this might not feel like much of a choice if you are a non-U.S. citizen entering the country! Plan accordingly.

Your border digital security checklist Preparing for travel

☐ Make a backup of each of your devices before traveling.
☐ Use long, unpredictable, alphanumeric passcodes for your devices and commit those passwords to memory.
☐ If bringing a laptop, ensure it is encrypted using BitLocker for Windows, or FileVault for macOS. Chromebooks are encrypted by default. A password-protected laptop screen lock is usually insufficient. When going through security, devices should be turned all the way off.
☐ Fully update your device and apps.
☐ Optional: Use a password manager to help create and store randomized passcodes. 1Password users can create temporary travel vaults.
☐ Bring as few sensitive devices as possible — only what you need.
☐ Regardless which country you are visiting, think carefully about what you are willing to post publicly on social media about that country to avoid scrutiny.
☐ For land ports of entry in the U.S., check CBP’s border wait times and plan accordingly.
☐ If possible, print out any travel documents in advance to avoid the necessity to unlock your phone during boarding, including boarding passes for your departure and return, rental car information, and any information about your itinerary that you would like to have on hand if questioned (e.g., hotel bookings, visa paperwork, employment information if applicable, conference information). Use a printer you trust at home or at the office, just in case.
☐ Avoid bringing sensitive physical documents you wouldn’t want searched. If you need them, consider digitizing them (e.g., by taking a photo) and storing them remotely on a cloud service or backup device.

Decide in advance whether you will unlock your device or provide the passcode for a search. Your overall likelihood of experiencing a device search is low (e.g., less than .01% of international travelers are selected), but depending on what information you carry, the impact of a search may be quite high. If you plan to unlock your device for a search or provide the passcode, ensure your devices are prepared:

☐ Upload any information you would like to keep in cloud providers in advance (e.g., using iCloud) that you would like stored remotely, instead of locally on your device.
☐ Remove any apps, files, chat histories, browsing histories, and sensitive contacts you would not want exposed during a search.
☐ If you delete photos or files, delete them a second time in the “Recently Deleted” or “Trash” sections of your Files and Photos apps.
☐ Remove messages from the device that you believe would draw unwanted scrutiny. Remove yourself — even if temporarily — from chat groups on platforms like Signal.
☐ If you use Signal and plan to keep it on your device, use disappearing messages to minimize how much information you keep within the app.
☐ Optional: Bring a travel device instead of your usual device. Ensure it is populated with the apps you need while traveling, as well as login credentials (e.g., stored in a password manager), and necessary files. If you do this, ensure your trusted contacts know how to reach you on this device.
☐ Optional: Rather than manually removing all sensitive files from your computer, if you are primarily accessing web services during your travels, a Chromebook may be an affordable alternative to your regular computer.
☐ Optional: After backing up your devices for every day use, factory reset it and add only the information you need back onto the device.
☐ Optional: If you intend to work during your travel, plan in advance with a colleague who can remotely assist you in accessing and/or rotating necessary credentials.
☐ If you don’t plan to work, consider discussing with your IT department whether temporarily suspending your work accounts could mitigate risks at border crossings.

On the day of travel

☐ Log out of accounts you do not want accessible to border officials. Note that border officers do not have authority to access live cloud content — they must put devices in airplane mode or otherwise disconnect them from the internet.
☐ Power down your phone and laptop entirely before going through security. This will enable disk encryption, and make it harder for someone to analyze your device.
☐ Immediately before travel, if you have a practicing attorney who has expertise in immigration and border issues, particularly related to members of the media, make sure you have their contact information written down before visiting.
☐ Immediately before travel, ensure that a friend, relative, or colleague is aware of your whereabouts when passing through a port of entry, and provide them with an update as soon as possible afterward.

If you are pulled into secondary screening

☐ Be polite and try not to emotionally escalate the situation.
☐ Do not lie to border officials, but don’t offer any information they do not explicitly request.
☐ Politely request officers’ names and badge numbers.
☐ If you choose to unlock your device, rather than telling border officials your passcode, ask to type it in yourself.
☐ Ask to be present for a search of your device. But note officers are likely to take your device out of your line of sight.
☐ You may decline the request to search your device, but this may result in your device being seized and held for days, weeks, or months. If you are not a U.S. citizen, refusal to comply with a search request may lead to denial of entry, or scrutiny of lawful permanent resident status.
☐ If your device is seized, ask for a custody receipt (Form 6051D). This should also list the name and contact information for a supervising officer.
☐ If an officer has plugged your unlocked phone or computer into another electronic device, they may have obtained a forensic copy of your device. You will want to remember anything you can about this event if it happens.
☐ Immediately afterward, write down as many details as you can about the encounter: e.g., names, badge numbers, descriptions of equipment that may have been used to analyze the device, changes to the device or corrupted data, etc.

Reporting is not a crime. Be confident knowing you haven’t done anything wrong.

More resources

• https://hselaw.com/news-and-information/legalcurrents/preparing-for-electronic-device-searches-at-united-states-borders/
• https://www.eff.org/wp/digital-privacy-us-border-2017#main-content
• https://www.aclu.org/news/privacy-technology/can-border-agents-search-your-electronic
• https://www.theverge.com/policy/634264/customs-border-protection-search-phone-airport-rights
• https://www.wired.com/2017/02/guide-getting-past-customs-digital-privacy-intact/
• https://www.washingtonpost.com/technology/2025/03/27/cbp-cell-phones-devices-traveling-us/

The mandatory retention of metadata is an evergreen of European digital policy. Despite a number of rulings by Europe’s highest court, confirming again and again the incompatibility of general and indiscriminate data retention mandates with European fundamental rights, the European Commission is taking major steps towards the re-introduction of EU-wide data retention mandates. Recently, the Commission launched a Call for Evidence on data retention for criminal investigations—the first formal step towards a legislative proposal.

The European Commission and EU Member States have been attempting to revive data retention for years. For this purpose, a secretive “High Level Group on Access to Data for Effective Law Enforcement” has been formed, usually referred to as High level Group (HLG) “Going dark”. Going dark refers to the false narrative that law enforcement authorities are left “in the dark” due to a lack of accessible data, despite the ever increasing collection and accessing of data through companies, data brokers and governments. Going dark also describes the intransparent ways of working of the HLG, behind closed doors and without input from civil society.

The Groups’ recommendations to the European Commission, published in 2024, read like a wishlist of government surveillance.They include suggestions to backdoors in various technologies (reframed as “lawful access by design”), obligations on service providers to collect and retain more user data than they need for providing their services, and intercepting and providing decrypted data to law enforcement in real time, all the while avoiding to compromise the security of their systems. And of course, the HLG calls for a harmonized data retention regime, including not only the retention of but also the access to data, and extending data retention to any service provider that could provide access to data.

EFF joined other civil society organizations in addressing the dangerous proposals of the HLG, calling on the European Commission to safeguard fundamental rights and ensuring the security and confidentiality of communication.

In our response to the Commission's Call for Evidence, we reiterated the same principles. 

• Any future legislative measures must prioritize the protection of fundamental rights and must be aligned with the extensive jurisprudence of the Court of Justice of the European Union. 
• General and indiscriminate data retention mandates undermine anonymity and privacy, which are essential for democratic societies, and pose significant cybersecurity risks by creating centralized troves of sensitive metadata that are attractive targets for malicious actors. 
• We highlight the lack of empirical evidence to justify blanket data retention and warn against extending retention duties to number-independent interpersonal communication services as it would violate EU Court of Justice doctrine, conflict with European data protection law, and compromise security.

The European Commission must once and for all abandon the ghost of data retention that’s been haunting EU policy discussions for decades, and shift its focus to rights respecting alternatives.

Read EFF’s full submission here.